Minerals Corporation Ltd v Abbot - [2004] NSWSC 246

CITATION: MINERALS CORPORATION LIMITED v ANTHONY NORMAN ABBOT TRADING AS PIPER ALDERMAN LAWYERS [2004] NSWSC 246

HEARING DATE(S): 20/11/03

JUDGMENT DATE:
2 April 2004

JUDGMENT OF: Bell J at 1

DECISION: 1. Dismiss the plaintiff's amended notice of motion in proceedings 20094 of 2003; 2. The plaintiff is to pay the defendants' costs of its amended notice of motion in proceedings 20094 of 2003; 3. The plaintiff is to pay the defendants' costs of the motion that was before Greg James J on 21 July 2003; 4.Stand over the summons to 9.15 on Thursday 8 April 2004 to permit the first defendants to amend their undertaking given on 3 November 2003 to include an undertaking not to rely on res judicata or estoppel by record in bar to the plaintiff's claim in proceedings 20094 of 2003.

LEGISLATION CITED: Legal Profession Act 1987

CASES CITED: Abrahams v Wainwright Ryan [1999] 1 VR 102
Cachia v Isaacs (1985) 3 NSWLR 366
CSR Limited v Cigna Insurance Australia Limited (1996) 189 CLR 345
Jackson v Goldsmith (1950) 81 CLR 446
L & W Developments Pty Limited v Della [2003] NSWCA 140
National Mutual Holdings Limited v Sentry Corporation (1989) 22 FCR 209
re Baker Johnson's Bill of Costs [1995] 2 Qd R 234
re Massey v Carey (1884) 26 Ch D 459
Ryan v Hansen t/as Hansens Solicitors [2000] NSWSC 354; 49 NSWLR 184
Tszyu v Flight Vision Pty Limited [2001] NSWCA 103

PARTIES :

Minerals Corporation Limited (Plaintiff)
Anthony Norman Abbot Trading as Piper Alderman Lawyers, Charles Neville Hervey Bagot Trading as Piper Alderman Lawyers, David Gregory Ey Trading as Piper Alderman Lawyers, Mark Allan Gordon Trading as Piper Alderman Lawyers, Gordon Hiatt Trading as Piper Alderman Lawyers, Owen Michael Keen Trading as Piper Alderman Lawyers, John Ignatius Maciel Trading as Piper Alderman Lawyers, Timothy John Patrick O'Callaghan Trading as Piper Alderman Lawyers, Simon Hayes Ward Trading as Piper Alderman Lawyers, Ashley Howard Watson Trading as Piper Alderman Lawyers, (1st Def)
Gordon Salier (2nd Def)

FILE NUMBER(S): SC 20094/03

COUNSEL: RE Dubler (Plaintiff)
CA Sirtes (Defendant)

SOLICITORS: Abbott Tout (Plaintiff)
Mallesons Stephen Jaques (1st Defendants)
IV Knight (2nd Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

20094/03 MINERALS CORPORATION LIMITED (ABN 51 002 529 160) v Anthony Norman ABBOTT & Ors
JUDGMENT

1 BELL J: The plaintiff commenced proceedings no. 20094 of 2003 in the Common Law Division of the Court by filing a statement of claim on 17 April 2003 claiming damages in contract and in negligence arising out of the conduct of legal work on its behalf by the first defendants, the partners of a firm of solicitors, Piper Alderman Lawyers (the professional negligence proceedings).

2 By motion in the professional negligence proceedings that was filed on 15 August 2003 the plaintiff claimed orders, including an order staying proceedings 91714 of 2002 in the Common Law Division of the Court.

3 The hearing of the plaintiff’s motion came before me on 3 November…

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: [2004] NSWSC 246
Decision Date: 2 April 2004

CaseChat Overview and Summary

Minerals Corporation Limited initiated proceedings against the partners of Piper Alderman Lawyers and a costs assessor, claiming damages for professional negligence and seeking an injunction to prevent the assessment of the defendants' costs. The plaintiff argued that the assessment process should be stayed due to the ongoing professional negligence proceedings and concerns about potential res judicata or estoppel defenses. Bell J held that the costs assessment process was not a proceeding in the court and therefore could not be stayed. The court rejected the plaintiff's arguments that the costs assessment should be halted, noting that the costs assessor's role was administrative and did not involve resolving factual disputes or exercising judicial power. Bell J also determined that the defendants' existing undertaking, which precluded them from relying on estoppel defenses, was insufficient and required amendment to include res judicata. The court stood over the summons to allow the defendants to amend their undertaking and denied the plaintiff's request for injunctive relief, dismissing the amended notice of motion and ordering the plaintiff to pay the defendants' costs.

Orders