Neale v Mahony - [2018] NSWSC 1046

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Neale v Mahony [2018] NSWSC 1046
Hearing dates: 27 June 2018
Date of orders: 13 July 2018
Decision date: 13 July 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Apart from the claim identified in paragraph 8(d) of the Statement of Claim, the claims pleaded in the Statement of Claim are dismissed pursuant to UCPR r 13.4;

(2) The whole of the pleading contained in the Statement of Claim is struck out pursuant to UCPR r 14.28;

(3) Grant leave to the plaintiff to re-plead the claim identified in paragraph 8(d) of the Statement of Claim;

(4) Any re-pleaded Amended Statement of Claim is to be served in draft on the solicitors for the defendant by 3 August 2018;

(5) Stand over the further hearing of the Notice of Motion to Friday 10 August, 2018 at 2.00pm;
(6) Costs reserved.
Catchwords:
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – plaintiff alleged that solicitor negligently conducted the defence of previous proceedings arising from his default under a mortgage – extended estoppel – abuse of process – where findings made against plaintiff in previous proceedings - whether solicitor immune from suit – no reasonable cause of action disclosed in respect of claims involving earlier findings – UCPR r 13.4

CIVIL PROCEDURE – pleadings – form and content of pleading – defective particulars of negligence – all pleadings struck out – plaintiff granted leave to re-plead solicitor’s failure to lodge a caveat on the land – UCPR r 14.28
ESTOPPEL – extended estoppel – finality – abuse of process - whether solicitor failed to plead the undervalue sale by receivers of land owned by plaintiff – whether failure to plead caused plaintiff’s loss – issue fundamental to previous proceedings issue determined adversely to plaintiff in earlier proceedings
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28
Cases Cited: Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
James Woodward Neale v Bank of Western Australia Ltd; Bank of Western Australia Ltd v James Woodward Neale [2014] NSWSC 315
Keefe v Marks (1989) 16 NSWLR 713
Neale v Commonwealth Bank of Australia Ltd trading as Bank of Western Australia [2015] NSWCA 272
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Reichel v Magrath (1889) 14 App Cas 665
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142
State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423
Texts Cited: Nil
Category: Procedural and other rulings
Parties: James Woodward Neale (Plaintiff)
John Francis Mahony (Defendant)
Representation:
Counsel:
In person (Plaintiff)
A Maroya (Defendant)
Solicitors:
Self-represented (Plaintiff)
Yeldham Price O'Brien Lusk (Defendant)

File Number(s): 2017/88092)
Publication restriction: Nil

Judgment

Background

On 22 March 2017 the plaintiff, Mr Neale, acting for himself, commenced…

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 Neale v Mahony

Details

AGLC: Neale v Mahony [2018] NSWSC 1046
Case: [2018] NSWSC 1046
Decision Date: 13 July 2018

CaseChat Overview and Summary

The plaintiff, Neale, sought damages against the defendant, Mahony, a solicitor who had acted for him in previous proceedings. The plaintiff alleged that the solicitor had negligently conducted the defence of the earlier proceedings, resulting in a default judgment and loss of his property. The case was heard in the Supreme Court of New South Wales. The plaintiff claimed that the solicitor failed to lodge a caveat on the land and did not plead an undervalue sale by receivers, leading to his loss. The defendant argued that the claims were an abuse of process and that the plaintiff's case was an attempt to relitigate issues that had already been determined adversely to him.

The court had to determine whether the solicitor was immune from suit due to the findings made against the plaintiff in the previous proceedings. The court also had to decide whether the plaintiff had disclosed a reasonable cause of action in respect of the claims involving the earlier findings. Additionally, the court had to assess whether the plaintiff's pleadings were defective and if the failure to plead the undervalue sale by receivers caused the plaintiff's loss.

The court found that the plaintiff's claims were an abuse of process and that the solicitor was immune from suit due to the findings made against the plaintiff in the previous proceedings. The court held that the plaintiff had not disclosed a reasonable cause of action in respect of the claims involving the earlier findings. Furthermore, the court found that the plaintiff's pleadings were defective and struck out all the pleadings. However, the court granted the plaintiff leave to re-plead the solicitor's failure to lodge a caveat on the land. The court held that the failure to lodge a caveat did not cause the plaintiff's loss, as the plaintiff had already lost the property due to the default judgment.

The court dismissed the plaintiff's proceeding in its entirety and ordered the plaintiff to pay the defendant's costs of the proceeding. The court also ordered the plaintiff to pay the defendant's costs of an application to strike out the pleadings.

Orders