Mark Rodney Bissaker v Simon George Croft - [2014] NSWSC 1647

Supreme Court

New South Wales

Medium Neutral Citation: Mark Rodney Bissaker & Ors v Simon George Croft & Ors [2014] NSWSC 1647
Hearing dates: 4 November 2014
Decision date: 21 November 2014
Jurisdiction: Civil
Before: Wilson J
Decision:
Order pursuant to s.26(1) of the Civil Procedure Act 2005 that the proceedings be referred to mediation

Catchwords: PRACTICE & PROCEDURE: professional negligence proceedings - motion seeking referral to mediation - Civil Procedure Act 2005 s.26(1) - where one party opposes referral to mediation - Court's power to order mediation - no point of principle
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 427
Higgins v Higgins [2002] NSWSC 455
Oasis Fund Management v ABN Amro [2009] NSWSC 967
Category: Procedural and other rulings
Parties: Mark Rodney Bissaker (First Plaintiff)
Christopher Peter Donnelly (Second Plaintiff)
Margaret Lea Donnelly (Third Plaintiff)
Simon George Croft (First Defendant)
Keith Charles Saunders (Second Defendant)
Wayne Charles Seymour (Third Defendant)
Phillip Arthur Gream (Fourth Defeendant)
Samuel Edward Notley (Fifth Defendant)
Karen Gail Tromp (Sixth Defendant)
Bradley James Schumacher (Seventh Defendant)
Jason Gregory Simmonds (Eight Defendant)
William Provis Warrick (Ninth Defendant)
Kevin John Pike (Tenth Defendant)
Michael James Muldoon (Eleventh Defendant)
Simon Keith Paul (Twelfth Defendant)
Alan Kevin Donges (Thirteenth Defendant)
Joseph Patrick Tonkin (Fourteenth Defendant)
QBE Insurance (Australia) Limited (Cross Defendant)
Representation:
Counsel:
A Cornish (Plaintiffs)
I Pike SC with E Munro (First and Fourth to Thirteenth Defendants)
No appearance for Third and Fourteenth Defendants
Solicitors:
D Courtenay (Second Defendant)
A McIntyre (Cross Defendant)

File Number(s): 2012/388528

Judgment

By Notice of Motion filed on 17 October 2014 the first defendant in these proceedings jointly with the fourth to thirteenth defendants, seeks orders referring the proceedings to mediation. The cross-defendant supports the Motion. The plaintiffs oppose it.

A Brief History of the Proceedings

On 14 December 2012, the plaintiffs Mark Bissaker, Christopher Donnelly and Margaret Donnelly, commenced proceedings against the partners of a firm of chartered accountants trading as Roberts & Morrow ("the partnership"). After a number of amendments to the claim, a final statement of claim was filed on 12 June 2013. There are 14 defendants in total.

The basis of the plaintiffs' claim is, briefly, that they separately retained the firm Roberts & Morrow to provide accounting and investment advice. The oral retainer implied a number of terms and warranties and created a professional relationship whereby the defendants owed the plaintiffs a duty of care.

One such advice was to invest in a liqueur business trading as Flaschengeist ("the Flaschengeist business"). It is unnecessary for the purposes of this judgment to set out the allegations regarding the precise terms of the advice, or the exact sequence of events that followed. Suffice to say that, acting on this advice, the plaintiffs assert that they entered into a joint venture with the second and the third defendants to purchase a number of existing stores and acquire exclusive distribution rights of the Flaschengeist products.

A company, Liqueurs NSW Pty…

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.

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Details

Case: [2014] NSWSC 1647
Decision Date: 21 November 2014

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Mark Rodney Bissaker v Simon George Croft was heard. The plaintiff, Mark Rodney Bissaker, sought damages for professional negligence against the defendant, Simon George Croft. The primary dispute revolved around the defendant's handling of a legal matter which allegedly resulted in financial loss to the plaintiff. The case was brought before the court for a decision on a motion concerning mediation as a means to resolve the dispute.

The central legal issue before the court was whether it should order mediation under section 26(1) of the Civil Procedure Act 2005, despite the plaintiff's opposition to such a referral. The court had to balance the statutory encouragement of alternative dispute resolution with the rights of the parties involved. The defendant argued that mediation would be an appropriate step to avoid the costs and delays of a trial, while the plaintiff maintained that the merits of the case did not warrant mediation.

The court considered the legislative intent behind section 26(1) of the Act, which promotes mediation as a means to resolve disputes. Despite the plaintiff's opposition, the court found that there was no point of principle that precluded it from ordering mediation. The court exercised its discretion to facilitate an attempt at resolving the dispute through mediation, acknowledging the potential benefits in terms of cost and time efficiency. The court thus ordered the matter to proceed to mediation under the supervision of a mediator appointed by the court.

Orders