Li v Andriano - [2014] NSWSC 877

Supreme Court

New South Wales

Medium Neutral Citation: Li v Andriano [2014] NSWSC 877
Hearing dates: 30 June 2014
Decision date: 30 June 2014
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The plaintiff is to file and serve the second amended statement of claim without underlining by 4.00 pm on 7 July 2014.
(2) The defendants are to serve any request for particulars by 21 July 2014.
(3) The plaintiff is to serve answers to particulars by 4 August 2014.
(4) The matter is listed for further directions before the registrar at 9.00 am on Thursday, 7 August 2014. Liberty to vacate.
(5) The plaintiff is to pay the costs of the notice of motion filed 21 March 2014 and those costs are to include the costs thrown away by the amendments to the statement of claim.
(6) The plaintiff is to forward a copy of this judgment to the costs assessor.

Catchwords: PRACTICE AND PROCEDURE - application to file second amended statement of claim - no matters of principle - expert witness - Court appointed costs expert - whether order should be varied
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Contracts Review Act 1980 (NSW)
Fair Trading Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 31.46
Cases Cited: Muriniti v Lyons [2004] NSWSC 135
Category: Procedural and other rulings
Parties: Si Xin Li (Plaintiff)
John Joseph Andriano (First Defendant)
Fairfield/Liverpool Legal Pty Ltd (Second Defendant)
Representation: Counsel:
G M Watson SC with E M Peden (Plaintiff)
D A Lloyd (First and Second Defendants)
Solicitors:
Wyatt Attorneys (Plaintiff)
Yeldham Price O'Brien Lusk (First and Second Defendants)

File Number(s): 2011/290683
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 21 March 2014, the plaintiff seeks leave to file and serve a second amended statement of claim ("2ASC") and seeks that the Court gives further directions in relation to the reference to the independent expert, including firstly, whether, if leave is granted to file and serve the 2ASC, the reference should continue and secondly, the nature of the enquiry to be undertaken by the independent expert.

The plaintiff is Si Xin Li. The first defendant is John Joseph Andriano. The second defendant is Fairfield/Liverpool Legal Pty Ltd. The defendants relied upon the affidavit of Bruce Alexander Yeldham sworn 9 April 2014.

By consent, the parties have agreed to the filing of the 2ASC on the basis that the plaintiff is to pay the defendants' costs thrown away by the amendments.

Background

On 12 August 2005, the plaintiff, as a passenger, was involved in a motor vehicle accident and suffered serious personal injuries. The plaintiff retained one of the defendants to act for him in proceedings in relation to that accident. Liability was admitted but contributory negligence remained in issue. The matter settled in January 2009.

The current pleading

The plaintiff claims damages in relation to a contract for legal services where Mr Andriano would act for…

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 Li v Andriano

Details

AGLC: Li v Andriano [2014] NSWSC 877
Case: [2014] NSWSC 877
Decision Date: 30 June 2014

CaseChat Overview and Summary

In the matter of Li v Andriano, the court considered an application by the plaintiff, Mr Li, to file a second amended statement of claim. The defendant, Mr Andriano, opposed the application on the basis that it was an unnecessary duplication of existing claims. The matter was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the plaintiff should be permitted to file a second amended statement of claim in the absence of any significant changes or new matters of principle. The court also needed to determine whether there were any grounds to vary an existing order appointing a costs expert.

The court found that the plaintiff's application to file a second amended statement of claim was not warranted, as there were no new matters of principle to be addressed. The court emphasised that the primary objective in allowing amendments to pleadings is to facilitate the just resolution of the real issues in dispute between the parties. The court noted that the plaintiff had already been granted permission to file an amended statement of claim, and the proposed second amended statement of claim did not introduce any new arguments or evidence. The court held that the application was an unnecessary duplication of existing claims, and therefore dismissed the application.

In relation to the appointment of a costs expert, the court considered whether there were grounds to vary an existing order. The plaintiff had applied for the costs expert to be removed, arguing that the expert was not qualified. The court found that there was insufficient evidence to support the plaintiff's contention that the costs expert was not qualified. The court noted that the costs expert had been appointed by the court after a thorough review of the qualifications and experience of potential experts. The court held that there were no grounds to vary the existing order appointing the costs expert.

The court dismissed the plaintiff's application to file a second amended statement of claim and refused to vary the existing order appointing a costs expert. The court ordered that the plaintiff pay the defendant's costs of the application in the sum of $2,000.

Orders