Combe v Ziade - [2000] NSWSC 762

CITATION: Combe v Ziade [2000] NSWSC 762

FILE NUMBER(S): SC 10976/00; 20091/00; 20092/00

HEARING DATE(S): 28 July 2000

JUDGMENT DATE: 31 July 2000

PARTIES :

Faye D Combe v Anthony Ziade

JUDGMENT OF: Sperling J at 1

COUNSEL :
In person
(Plaintiff/applicant)
B Skinner
(Defendant/respondent 10976/00)
Ms E Devery
(Defendant/respondent 20091/00;20092/00)

SOLICITORS:
In person
(Plaintiff/applicant)
Middleton Moore & Bevins
(Defendant/respondent)

CASES CITED: Baldwin v Commonwealth Bank of Australia (Unreported) NSWSC, 24 July 1996.

DECISION: See paragraphs 13 and 14.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVSION
PROFESSIONAL NEGLIGENCE LIST

SPERLING J

Monday, 31 July 2000

20091/00 Faye D COMBE v Anthony ZIADE
20092/00 Faye D COMBE v Anthony ZIADE
10976/00 Faye D COMBE v Anthony ZIADE

JUDGMENT

1    HIS HONOUR: This is a matter of Combe v Ziade. So far as is relevant, the history of this matter is as follows:

2    Mr A Ziade, solicitor, claims to be entitled to the payment of legal costs by Ms F D Combe in relation to a Family Law matter and a probate matter.

3    Mr Ziade obtained judgment in the Burwood Local Court for costs in relation to the Family Law matter. Ms Combe has filed a summons in this court appealing from that determination. That is proceedings 20096 of 2000.

4    Mr Ziade commenced proceedings in the District Court for recovery of costs in relation to the probate matter. By her amended defence Ms Combe alleges negligence, making the work done by Mr Ziade worthless or of less value than is claimed. She has also filed a cross-claim against Mr Ziade claiming damages for negligence in both the probate and the Family Law matters. The particulars of negligence in relation to the cross-claim are not identical with those in the defence, although some items appear in both documents.

5    It is alleged that Mr Ziade’s negligence deleteriously affected the outcome of the probate matter and the Family Law matter. Consequential financial loss is alleged and consequential damage to Ms Coombe’s health.

6    In proceedings 20091 of 2000, and 20092 of 2000 in this court Ms Combe again claims damages for negligence by Mr Ziade in relation to the Family Law matter and the probate matter respectively. The particulars of negligence in these proceedings are much more extensive than in the District Court defence and cross-claim. There appears to be considerable overlap, however, between the allegations of negligence and of consequential damage as between the District Court and the Supreme Court proceedings.

7    The court is informed that the District Court proceedings are listed for hearing on 1 August. That is tomorrow.

8    On 13 July 2000, Ms Combe filed a notice of motion in each of the three proceedings in this court claiming orders that the District Court proceedings be transferred to this court to be linked up with the proceedings here or to replace them; that the hearing date, 1 August, in the District Court be vacated; and that the District Court proceedings be dismissed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Combe v Ziade

Details

AGLC: Combe v Ziade [2000] NSWSC 762
Case: [2000] NSWSC 762
Decision Date: 31 July 2000

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Faye D Combe sought to have proceedings transferred from the District Court to the Supreme Court. Combe sought to have the proceedings in the District Court, in which Anthony Ziade, a solicitor, claimed costs from Combe, transferred to the Supreme Court or dismissed. Ziade had obtained a judgment in the Burwood Local Court for costs in relation to a Family Law matter, and Combe had appealed that judgment to the Supreme Court. Ziade had also commenced proceedings in the District Court for recovery of costs in relation to a probate matter. Combe had filed a defence and a cross-claim in the District Court alleging negligence by Ziade, making his work worthless or of less value than claimed. Combe had also filed proceedings in the Supreme Court claiming damages for negligence by Ziade in relation to the Family Law matter and the probate matter. The court dismissed Combe’s application for the proceedings to be transferred to the Supreme Court or dismissed. The court found that it would now be a rare case in which it would be appropriate to remove proceedings into the Supreme Court against the wishes of a litigant who had exercised a prima facie entitlement to have proceedings heard for whatever reason in the jurisdiction of their choice. The court also ordered Combe to pay Ziade’s costs of the notices of motion.

Orders