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FEV Mono Constructions Pty Ltd v Beattie

FEV Mono Constructions Pty Ltd v Beattie

Case [2021] NSWCA 18 23 February 2021

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: FEV Mono Constructions Pty Ltd v Beattie [2021] NSWCA 18
Hearing dates: 10 February 2021
Decision date: 23 February 2021
Before: Meagher JA at [1];
Gleeson JA at [31];
Emmett AJA at [32]
Decision:
In proceedings 2020/00269032:
(1) Dispense with the requirement in Uniform Civil Procedure Rules, r 7.1(3) that the first and second applicants be represented by a solicitor with respect to the prosecution of the summons seeking leave to appeal.
(2)   Extend the time for the applicants to file and serve the summons seeking leave to appeal to 15 September 2020.
(3)   Dismiss the summons seeking leave to appeal.
(4)   Order the applicants pay the respondents’ costs of that summons.
In proceedings 2020/00155297:
(1)   Dismiss the appeal commenced by notice of appeal filed on 30 July 2020 as incompetent.
(2)   Order the appellants pay the respondents’ costs of their motion for dismissal of that appeal as incompetent.

Catchwords:
CIVIL PROCEDURE – parties – removal of parties – where no cause of action pleaded or articulated in argument on behalf of second to fourth plaintiffs – whether to remove as parties under Uniform Civil Procedure Rules, r 6.29
CIVIL PROCEDURE – pleadings – striking out – where most pleaded particulars of negligence covered by advocate’s immunity – where some pleaded claims possibly maintainable – whether to address advocate’s immunity on pleadings – whether to strike out entire statement of claim with leave to replead

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 14
Home Building Act 1989 (NSW), s 18B
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 7.1(3), 7.28, 14.28, 51.1(3), (4), 51.41

Cases Cited:
Attwells v Jackson Lalic Lawyers (2016) 259 CLR 1; [2016] HCA 16
Bott v Carter [2012] NSWCA 89
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Donnellan v Woodland [2012] NSWCA 433
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145
Nikolaidis v Satouris [2014] NSWCA 448; (2014) 317 ALR 761
Sims v Chong (2015) 230 FCR 346; [2015] FCAFC 80
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Young v Homes [2014] NSWCA 337

Category: Principal judgment
Parties: FEV Mono Constructions Pty Ltd (First applicant)
FEV Mono Pty Ltd (Second applicant)
Eleni Monovasios (Third applicant)
Vicki Monovasios (Fourth applicant)
Gregory Beattie (First respondent)
Anthony Hudson (Second respondent)
Lucy Motto (Third respondent)
Stephen Patterson (Fourth respondent)
Kendall Webber (Fifth respondent)
Representation:
Counsel:
Applicants self-represented
I Griscti (Respondents)
Solicitors:
Applicants self-represented
Gilchrist Connell (Respondents)

File Number(s): 2020/269032; 2020/155297
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 467

Date of Decision:

28 April 2020

Before:

Fagan J

File Number(s):

2020/23322

Judgment

MEAGHER JA: The four applicants, two companies and two directors of each company, seek leave to appeal from…

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 FEV Mono Constructions Pty Ltd v Beattie

Details

AGLC: FEV Mono Constructions Pty Ltd v Beattie [2021] NSWCA 18
Case: [2021] NSWCA 18
Decision Date: 23 February 2021

CaseChat Overview and Summary

FEV Mono Constructions Pty Ltd (the applicant) sought leave to appeal a decision of the primary judge concerning the removal of certain plaintiffs from proceedings and the striking out of a statement of claim. The respondents were the original defendants in the proceedings. The dispute centred on whether the second to fourth plaintiffs had a valid cause of action against the defendants and whether the statement of claim, particularly allegations of negligence, should be struck out due to advocate's immunity.

The court was required to determine two primary legal issues. Firstly, whether the second to fourth plaintiffs should be removed as parties to the proceedings under rule 6.29 of the Uniform Civil Procedure Rules, given that no cause of action was pleaded or articulated on their behalf in argument. Secondly, the court had to consider whether to strike out the entire statement of claim, or parts thereof, in light of the assertion of advocate's immunity in relation to the pleaded particulars of negligence, and whether to grant leave to replead.

The Court of Appeal, comprising Meagher and Gleeson JJA and Emmett AJA, found that the appeal was incompetent. The court dispensed with certain procedural requirements for the applicants and extended time for them to file their summons seeking leave to appeal. However, the summons seeking leave to appeal was ultimately dismissed, and the applicants were ordered to pay the respondents' costs of that summons. In separate proceedings, the appeal commenced by a notice of appeal filed on 30 July 2020 was also dismissed as incompetent, with the appellants ordered to pay the respondents' costs of the motion to dismiss.

Orders

Orders of the court

In proceedings 2020/00269032:

(1) Dispense with the requirement in Uniform Civil Procedure Rules, r 7.1(3) that the first and second applicants be represented by a solicitor with respect to the prosecution of the summons seeking leave to appeal.

(2) Extend the time for the applicants to file and serve the summons seeking leave to appeal to 15 September 2020.

(3) Dismiss the summons seeking leave to appeal.

(4) Order the applicants pay the respondents’ costs of that summons.

In proceedings 2020/00155297:

(1) Dismiss the appeal commenced by notice of appeal filed on 30 July 2020 as incompetent.

(2) Order the appellants pay the respondents’ costs of their motion for dismissal of that appeal as incompetent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

FEV Mono Constructions Pty Ltd v Beattie [2021] NSWCA 18

Most Recent Citation

Volanne Pty Ltd & Ors v Donohue [2021] ACTSC 48

Cases citing this decision · 3 of 3 shown

Boensch v Bingham
[2023] NSWSC 1152 Para 59

…ocate’s immunity because the pleadings may not sufficiently enable the negligent conduct to be identified: FEV Mono Constructions Pty Ltd v Beattie [2021] NSWCA 18 at [20].…
Markovic v The Queen (No. 4)
[2022] NSWDC 742

…cutions New South Wales v Lucas [2014] NSWSC 1441 Grajewski v DPP New South Wales [2019] HCA 8 Hammond v R (2013) 85 NSWLR 303 Lunney v DPP [2021] NSWCA 18 McNab v DPP 2021 NSW CA 298 Category: Principal judgment Parties: Duro George Markovic (Appellant) Director of Public Prosecutions (NSW) (Respondent) Represent…
Volanne Pty Ltd & Ors v Donohue
[2021] ACTSC 48 Para 1

…Recently in FEV Mono Constructions Pty Ltd v Beattie [2021] NSWCA 18, Meagher JA (with whom Gleeson JA and Emmett AJA agreed) described circumstances where summary determination may not be appropriate at [20]:…

View all 3 citing cases →

Cases cited in this decision · 14 of 14 shown

FEV Mono Constructions Pty Ltd v Beattie
[2020] NSWSC 467 Para 3

…as no cause of action pleaded on behalf of any of them in their own right in the amended statement of claim: FEV Mono Constructions Pty Ltd v Beattie [2020] NSWSC 467 at [7]. His Honour then struck out the whole of that amended statement of claim, concluding that most of the pleaded allegations of negligence were u…
Attwells v Jackson Lalic Lawyers Pty Ltd
[2016] HCA 16 Para 12

…lication of the immunity stated in D’Orta and Giannarelli which, as explained by the majority in Attwells v Jackson Lalic Lawyers (2016) 259 CLR 1; [2016] HCA 16 at [6], requires that “advice given out of court must affect the conduct of the case in court and the resolution of the case by that court.” In other w…
Sims v Chong (No 2)
[2015] FCAFC 163 Para 13

…as misleading or deceptive also supported claims in negligence that would be covered by the immunity. That decision was applied in Sims v Chong (2015) 230 FCR 346; [2015] FCAFC 80 at [84] (Mansfield, Siopis and Rares JJ).…
Sims v Chong
[2015] FCAFC 80 Para 13

…eptive also supported claims in negligence that would be covered by the immunity. That decision was applied in Sims v Chong (2015) 230 FCR 346; [2015] FCAFC 80 at [84] (Mansfield, Siopis and Rares JJ).…
Nikolaidis v Satouris
[2014] NSWCA 448 Para 13

…also be precluded by the immunity from suit. That question was considered and decided in the affirmative by this Court in Nikolaidis v Satouris [2014] NSWCA 448; (2014) 317 ALR 761 at [24]ff (Barrett JA, Beazley P and Ward JA agreeing) where the conduct alleged as misleading or deceptive also supported claims in ne…
Young v Hones
[2014] NSWCA 337 Para 20

…to whether the pleaded allegations are sufficiently expansive and clear as to enable the immunity question to be properly addressed. In Young v Homes [2014] NSWCA 337 at [5], Bathurst CJ emphasised that it would not be “appropriate in all cases for questions of advocate’s immunity to be decided” as preliminary ques…
Donnellan v Woodland
[2012] NSWCA 433 Para 20

…ed” as preliminary questions and by reference to the pleadings as they exist at that time. For, as Beazley JA explained in Donnellan v Woodland [2012] NSWCA 433 at [7], the pleadings may not sufficiently enable the negligent conduct to be identified. In such a case the court may decline to strike out the pleading o…
Bott v Carter
[2012] NSWCA 89 Para 20

…to which the immunity would not apply or that those allegations might not be reformulated with the same outcome: as to which see Bott v Carter [2012] NSWCA 89 at [10]-[13] (Basten JA, McColl and Whealy JJA agreeing). There was no denial of procedural fairness. The primary judge struck out the whole of the pleadin…
Spencer v Commonwealth of Australia
[2010] HCA 28

…156 ER 145 Nikolaidis v Satouris [2014] NSWCA 448; (2014) 317 ALR 761 Sims v Chong (2015) 230 FCR 346; [2015] FCAFC 80 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Young v Homes [2014] NSWCA 337 Category: Principal judgment Parties: FEV Mono Constructions Pty Ltd (First applicant) FEV Mono Pty Ltd (Second applicant…
D'Orta-Ekenaike v Victoria Legal Aid
[2005] HCA 12 Para 5

…to work done out of court which is “intimately connected with work in a court” ( D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [86]). At the same time, the remaining applicants, if they have arguable causes of action against the respondents, remain able to bring separate proceedings in…
Giannarelli v Wraith
[1988] HCA 52 Para 5

…ork done out of court which leads to a decision affecting the conduct of the case in court” ( Giannarelli v Wraith (1988) 165 CLR 543 at 560; [1988] HCA 52) or to work done out of court which is “intimately connected with work in a court” ( D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at…
156 ER 145
156 ER 145 Para 18

…Finally, the rule in Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145, which limits the damages that may be recovered for breach of contract, has no application to the position of the remaining applicants where it was not suggested that there was any relevant contract with the respondents other than their contr…
Hadley v Baxendale
[1854] 154 ER 145 Para 18

…Finally, the rule in Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145, which limits the damages that may be recovered for breach of contract, has no application to the position of the remaining applicants where it was not suggested that there was any relevant contract with the respondents other than their contract of retainer…
Orta-Ekenaike v Victoria Legal Aid
Para 5

…Wraith (1988) 165 CLR 543 at 560; [1988] HCA 52) or to work done out of court which is “intimately connected with work in a court” ( D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [86]). At the same time, the remaining applicants, if they have arguable causes of action against the respondents, remain able to bring…

Legislation cited in this decision · 4

Uniform Civil Procedure Rules 2005 (NSW)
14.28, 51.1(3), 51.41, 6.29, 7.1(3), 7.2... 6 mentions
Civil Procedure Act 2005 (NSW)
14, 14) 3 mentions (from Para 2)
Home Building Act 1989 (NSW)
18B 1 mention (from Para 8)
Legal Profession Act 2004 (Vic)
1 mention

Medium Neutral Citation:	FEV Mono Constructions Pty Ltd v Beattie [2021] NSWCA 18
Hearing dates:	10 February 2021
Decision date:	23 February 2021
Before:	Meagher JA at [1]; Gleeson JA at [31]; Emmett AJA at [32]
Decision:	In proceedings 2020/00269032: (1) Dispense with the requirement in Uniform Civil Procedure Rules, r 7.1(3) that the first and second applicants be represented by a solicitor with respect to the prosecution of the summons seeking leave to appeal. (2) Extend the time for the applicants to file and serve the summons seeking leave to appeal to 15 September 2020. (3) Dismiss the summons seeking leave to appeal. (4) Order the applicants pay the respondents’ costs of that summons. In proceedings 2020/00155297: (1) Dismiss the appeal commenced by notice of appeal filed on 30 July 2020 as incompetent. (2) Order the appellants pay the respondents’ costs of their motion for dismissal of that appeal as incompetent.
Catchwords:	CIVIL PROCEDURE – parties – removal of parties – where no cause of action pleaded or articulated in argument on behalf of second to fourth plaintiffs – whether to remove as parties under Uniform Civil Procedure Rules, r 6.29 CIVIL PROCEDURE – pleadings – striking out – where most pleaded particulars of negligence covered by advocate’s immunity – where some pleaded claims possibly maintainable – whether to address advocate’s immunity on pleadings – whether to strike out entire statement of claim with leave to replead
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 14 Home Building Act 1989 (NSW), s 18B Legal Profession Act 2004 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 7.1(3), 7.28, 14.28, 51.1(3), (4), 51.41
Cases Cited:	Attwells v Jackson Lalic Lawyers (2016) 259 CLR 1; [2016] HCA 16 Bott v Carter [2012] NSWCA 89 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Donnellan v Woodland [2012] NSWCA 433 Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145 Nikolaidis v Satouris [2014] NSWCA 448; (2014) 317 ALR 761 Sims v Chong (2015) 230 FCR 346; [2015] FCAFC 80 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Young v Homes [2014] NSWCA 337
Category:	Principal judgment
Parties:	FEV Mono Constructions Pty Ltd (First applicant) FEV Mono Pty Ltd (Second applicant) Eleni Monovasios (Third applicant) Vicki Monovasios (Fourth applicant) Gregory Beattie (First respondent) Anthony Hudson (Second respondent) Lucy Motto (Third respondent) Stephen Patterson (Fourth respondent) Kendall Webber (Fifth respondent)
Representation:	Counsel: Applicants self-represented I Griscti (Respondents) Solicitors: Applicants self-represented Gilchrist Connell (Respondents)
File Number(s):	2020/269032; 2020/155297
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 467 Date of Decision: 28 April 2020 Before: Fagan J File Number(s): 2020/23322