Liascos v Walmsley - [2015] NSWDC 160

District Court

New South Wales

Medium Neutral Citation: Liascos v Walmsley [2015] NSWDC 160
Hearing dates: 6 February 2015
Date of orders: 06 February 2015
Decision date: 06 February 2015
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005, strike out paragraph 20 on page 5 of the Amended Statement of Claim and all those paragraphs and subparagraphs on pages 6, 7, 8 and 9 up to and including paragraph 18 on page 9.
(2)   Direct that any proposed Further Amended Statement of Claim be served on the defendant within 14 days.
(3)   In the event that the defendant does not consent to the filing of any proposed Further Amended Statement of Claim so served, the plaintiff have leave by 6 March 2015 to file a notice of motion returnable before me for leave to file the Further Amended Statement of Claim in the form served.
(4)   In the event that no such notice of motion is filed by 6 March 2015 and no Further Amended Statement of Claim is filed by consent by that date, the defendant is at liberty to re-list the matter before me for further orders disposing of the residue of the Amended Statement of Claim.
(5)   Plaintiff to pay the defendant’s costs of the notice of motion.

Catchwords: PRACTICE AND PROCEDURE – application for summary judgment or to strike out statement of claim – client suing his former solicitor – advocate’s immunity
Legislation Cited: Civil Procedure Act 2005, s 99
Uniform Civil Procedure Rules 2005, r 14.28
Cases Cited: D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Donnellan v Woodland [2012] NSWCA 433
Giannarelli & Shulkes v Wraith (1988) 165 CLR 543
Kendirjian v Lepore [2014] NSWDC 66
Young v Hones [2014] NSWCA 337
Category: Procedural and other rulings
Parties: James Liascos (plaintiff)
Adrian Walmsley trading as AR Walmsley & Co (defendant)
Representation:
Counsel:
Mr C Bolger (plaintiff)
Mr D Lloyd (defendant)
Solicitors:
G & S Law Group Pty Ltd (plaintiff)
Meridian Lawyers (defendant)

File Number(s): 2013/330384
Publication restriction: None

Judgment

A solicitor, Adrian Walmsley, seeks summary judgment against, or alternatively strikeout of the Amended Statement of Claim of, his former client, James Liascos.
Mr Liascos has commenced proceedings against Mr Walmsley. He seeks damages for negligence, breach of agreement and breach of fiduciary duties. The circumstances of the alleged negligence and breaches occurred in connection with litigation against Mr Liascos as one of four defendants for whom Mr Walmsley acted. Although 27 separate items of conduct constituting negligence and breach of agreement and three items of breach of fiduciary duty are alleged against Mr Walmsley in the Amended Statement of Claim, 13 were abandoned before me. Mr Liascos has summarised the 17 remaining items of conduct as representing two principal areas of complaint:

Mr Walmsley failed to advise Mr Liascos that he should be separately represented; and

Mr Walmsley failed to maintain or commence cross‑claims in the proceedings.

While there appear to…

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 Liascos v Walmsley

Details

AGLC: Liascos v Walmsley [2015] NSWDC 160
Case: [2015] NSWDC 160
Decision Date: 06 February 2015

CaseChat Overview and Summary

The case of Liascos v Walmsley involved a dispute between a former client, Liascos, and his former solicitor, Walmsley. Liascos had filed a statement of claim against Walmsley, alleging professional negligence. The application before the court was to strike out parts of the amended statement of claim and for summary judgment. The court was tasked with determining whether certain parts of Liascos' amended statement of claim could be struck out and if the application for summary judgment could proceed.

The court considered the legal issues of whether certain claims were statute-barred, whether they disclosed a reasonable cause of action, and whether the advocate's immunity applied. The court examined the provisions of the Limitation Act 1969 (NSW) and relevant case law concerning the advocate's immunity and the requirements for a valid statement of claim. The court also assessed whether the amended statement of claim contained sufficient particulars to disclose a reasonable cause of action against Walmsley.

The court found that certain parts of the amended statement of claim were statute-barred and did not disclose a reasonable cause of action. The court held that the advocate's immunity applied to some of the claims made by Liascos. Consequently, the court struck out the relevant paragraphs of the amended statement of claim and directed Liascos to serve a further amended statement of claim within 14 days. If Walmsley did not consent to the filing of the further amended statement of claim, Liascos was granted leave to file a notice of motion for leave to file the further amended statement of claim. If no such notice was filed by a specified date, Walmsley was at liberty to re-list the matter for further orders. The court also ordered Liascos to pay Walmsley's costs of the notice of motion.

Orders

Orders of the court

(1) Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005, strike out paragraph 20 on page 5 of the Amended Statement of Claim and all those paragraphs and subparagraphs on pages 6, 7, 8 and 9 up to and including paragraph 18 on page 9.

(2) Direct that any proposed Further Amended Statement of Claim be served on the defendant within 14 days.

(3) In the event that the defendant does not consent to the filing of any proposed Further Amended Statement of Claim so served, the plaintiff have leave by 6 March 2015 to file a notice of motion returnable before me for leave to file the Further Amended Statement of Claim in the form served.

(4) In the event that no such notice of motion is filed by 6 March 2015 and no Further Amended Statement of Claim is filed by consent by that date, the defendant is at liberty to re-list the matter before me for further orders disposing of the residue of the Amended Statement of Claim.

(5) Plaintiff to pay the defendant’s costs of the notice of motion.

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

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Medium Neutral Citation:	Liascos v Walmsley [2015] NSWDC 160
Hearing dates:	6 February 2015
Date of orders:	06 February 2015
Decision date:	06 February 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005, strike out paragraph 20 on page 5 of the Amended Statement of Claim and all those paragraphs and subparagraphs on pages 6, 7, 8 and 9 up to and including paragraph 18 on page 9. (2) Direct that any proposed Further Amended Statement of Claim be served on the defendant within 14 days. (3) In the event that the defendant does not consent to the filing of any proposed Further Amended Statement of Claim so served, the plaintiff have leave by 6 March 2015 to file a notice of motion returnable before me for leave to file the Further Amended Statement of Claim in the form served. (4) In the event that no such notice of motion is filed by 6 March 2015 and no Further Amended Statement of Claim is filed by consent by that date, the defendant is at liberty to re-list the matter before me for further orders disposing of the residue of the Amended Statement of Claim. (5) Plaintiff to pay the defendant’s costs of the notice of motion.
Catchwords:	PRACTICE AND PROCEDURE – application for summary judgment or to strike out statement of claim – client suing his former solicitor – advocate’s immunity
Legislation Cited:	Civil Procedure Act 2005, s 99 Uniform Civil Procedure Rules 2005, r 14.28
Cases Cited:	D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 Donnellan v Woodland [2012] NSWCA 433 Giannarelli & Shulkes v Wraith (1988) 165 CLR 543 Kendirjian v Lepore [2014] NSWDC 66 Young v Hones [2014] NSWCA 337
Category:	Procedural and other rulings
Parties:	James Liascos (plaintiff) Adrian Walmsley trading as AR Walmsley & Co (defendant)
Representation:	Counsel: Mr C Bolger (plaintiff) Mr D Lloyd (defendant) Solicitors: G & S Law Group Pty Ltd (plaintiff) Meridian Lawyers (defendant)
File Number(s):	2013/330384
Publication restriction:	None