Neale v Mahony (No. 2) - [2018] NSWSC 1253

Supreme Court

New South Wales

Medium Neutral Citation: Neale v Mahony (No. 2) [2018] NSWSC 1253
Hearing dates: 10 August 2018
Date of orders: 10 August 2018
Decision date: 10 August 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Refuse leave to Plaintiff to file Amended Statement of Claim.
2. Statement of Claim dated 22 March 2017 dismissed pursuant to UCPR r 13.4.
3. Plaintiff to pay Defendant’s costs of the proceedings.

Catchwords: CIVIL PROCEDURE – pleadings – reasonable prospects of success – professional negligence claim - where plaintiff had two opportunities to plead a reasonable cause of action – proceedings dismissed
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Neale v Mahony [2018] NSWSC 1046
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

I gave judgment in respect of a notice of motion filed by the defendant on 9 March 2018 which claimed summary dismissal of a proceedings commenced by the plaintiff on 22 March 2017. I dismissed all but one aspect of the statement of claim: Neale v Mahony [2018] NSWSC 1046.
The one matter that I gave leave to the plaintiff to re-plead concerned particular (d) of the particulars of negligence in para 8 of the statement of claim. That particular read: "Failing to lodge caveats when strongly advised by Ralph Notley of counsel and the plaintiff to do so."
In respect of that particular, I said this in my earlier judgment:

[44] Particular (d) concerns a failure to lodge caveats when advised by Mr Notley of counsel that Mr Mahony should do so. As best I can understand this claim, Mr Notley in an email of 15 June 2012 asked Mr Mahony whether caveats had been lodged over the Avon Road properties and said that, if they had not, Mr Mahony should consider whether caveats should be lodged. Mr Neale, of course, was the registered proprietor of the Avon Road properties, but it seems that the purpose of lodging the caveats was to enable him to receive notice by a Lapsing Notice when the Bank was ready to sell that property.
[45] Mr Neale appeared to accept that he would have needed to remove the caveat whether on receipt of a Lapsing Notice or after a hearing but, being on notice that the property was about to be sold, he would, unlike what happened with the Yatala Road property, be in a position to ensure that the Bank marketed and sold the Avon Road property at a fair price. Instead of that, it appears that the Bank was able to sell that property without any notice to him. Implied in all of this, although not expressly stated, and certainly not pleaded, was the suggestion that this property…

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: [2018] NSWSC 1253
Decision Date: 10 August 2018

CaseChat Overview and Summary

The matter of Neale v Mahony was heard in the Federal Circuit Court of Australia, where the plaintiff sought damages for professional negligence against the defendant. The plaintiff, having previously commenced proceedings that were dismissed for failure to plead a cause of action, brought a fresh claim for professional negligence against the defendant. The case centred on the plaintiff's ability to plead a reasonable cause of action within the requisite legal framework.

The central legal issue before the court was whether the plaintiff had a reasonable prospect of success in their professional negligence claim. The court was required to consider whether the plaintiff's second attempt at pleading a cause of action was sufficient to meet the standard required by the law. This involved assessing the sufficiency of the particulars provided in the plaintiff's statement of claim and whether they disclosed a reasonable cause of action.

In examining the pleadings, the court determined that the plaintiff had not provided sufficient particulars to establish a reasonable cause of action. The court held that the plaintiff had failed to demonstrate that the defendant's actions or omissions were negligent and that such negligence had caused the plaintiff's loss. The court further found that the plaintiff had not identified any particulars that would lead to a reasonable conclusion that the defendant was liable for professional negligence. Consequently, the court dismissed the proceedings for lack of reasonable prospects of success.

The court ordered that the proceedings be dismissed and that the plaintiff pay the defendant's costs of the application. The court did not grant leave to amend the pleadings, finding that even if the plaintiff had the opportunity to amend, it was unlikely that any amendment would cure the deficiencies identified in the statement of claim.

Orders