Ng v Velik - [2009] NSWSC 1256

CITATION: Ng v Velik [2009] NSWSC 1256

HEARING DATE(S): 6 November 2009

JUDGMENT DATE :
20 November 2009

JUDGMENT OF: Harrison J

DECISION: 1. Application refused.
2. Order the defendant to pay the plaintiff's costs of the application.

CATCHWORDS: DISCOVERY – plaintiff suing former solicitor alleging negligence and breach of fiduciary duty – whether solicitor acted without instructions from the plaintiff – where 11,000 pages of solicitor's files provided to the plaintiff before commencement of proceedings - application by defendant for order to limit scope of defendant's obligation to comply with UCPR 21.3 as documents already in plaintiff's possession – whether cost and inconvenience to defendant outweighs plaintiff's insistence that defendant conform to his obligation to give discovery with particular identification of each document in the normal course – order refused

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Auspine Ltd v H S Lawrence & Sons Pty Ltd [2000] FCA 1405
Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No. 8) [2001] NSWIRComm 208

PARTIES: Ping Jin Ng (Plaintiff)
Stephen Wayne Velik (Defendant)

FILE NUMBER(S): SC 20093/2009

COUNSEL: G Doherty (Plaintiff)

SOLICITORS: Chalmers Legal Studio (Plaintiff)
S V Law (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

20 November 2009

20093/2009 Ping Jin Ng v Stephen Wayne Velik
JUDGMENT

1 HIS HONOUR: The defendant seeks orders to limit or qualify the manner in which, and the extent to which, he ought to be required to give discovery to the plaintiff. That application arises in the circumstances described below.

Background

2 The statement of claim in this matter is an unfortunate document. However, at least the following matters emerge, or can be assumed to flow, from it. The defendant is the plaintiff's former solicitor. The defendant provided legal services to the plaintiff with respect to a loan from the plaintiff, or from an entity controlled by him, to Felice Pulzato and Gesilla Pulzato. The loan was secured by a mortgage over their property in Box Hill North in Victoria. The Pulzatos were refinancing an existing mortgage over the property, which secured a loan from Wayne Stuart Jonas and Rosalind Wilson Jonas. The defendant prepared the new loan documentation and mortgage for the plaintiff and appears to have attended on settlement of the transaction when $243,649.50 was paid to discharge the Jonas' mortgage.

3 The Pulzatos subsequently alleged that they had not signed the mortgage given to the plaintiff, but apparently maintained that their signatures had been forged by a third party. In due course, on 18 October 2005, a solicitor for the Pulzatos wrote to the defendant to tell him of the allegation that the mortgage had been forged and that his clients had been defrauded. The plaintiff alleges that the defendant did not refer these allegations to him but proceeded instead on his own to take steps in the plaintiff's name to enforce the mortgage notwithstanding the allegations. In due course the Pulzatos…

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 Ng v Velik

Details

AGLC: Ng v Velik [2009] NSWSC 1256
Case: [2009] NSWSC 1256
Decision Date: 20 November 2009

CaseChat Overview and Summary

The case of Ng v Velik involved a plaintiff suing a former solicitor for alleged negligence and breach of fiduciary duty. The plaintiff alleged that the solicitor had acted without proper instructions. Before the commencement of proceedings, the plaintiff had already been provided with 11,000 pages of the solicitor's files. The defendant solicitor then sought an order to limit the scope of his obligation to comply with UCPR 21.3, arguing that since the plaintiff already possessed the documents, the obligation had been satisfied. The court had to determine whether the cost and inconvenience to the defendant outweighed the plaintiff's insistence that the defendant conform to his obligation to give discovery with particular identification of each document in the normal course.

The legal issue before the court was whether the defendant's obligation to provide discovery under UCPR 21.3 was fulfilled by providing extensive documents to the plaintiff prior to the proceedings. The court needed to balance the plaintiff's right to full disclosure against the defendant's claim of undue burden. The defendant argued that the cost and inconvenience of re-identifying and providing the documents again were significant, and that the plaintiff's possession of the documents should suffice. Conversely, the plaintiff maintained that the defendant's obligation was to give discovery in the normal course, which includes the identification of each document.

The court found that the defendant's obligation to give discovery under UCPR 21.3 was not discharged by the mere provision of the documents. The court held that the identification of each document is an essential part of the discovery process, and this identification must be done in the normal course. The court determined that the cost and inconvenience to the defendant did not outweigh the importance of the plaintiff's right to full and proper disclosure. Therefore, the defendant was required to comply with his obligation to give discovery in accordance with UCPR 21.3, which included identifying each document. The application by the defendant for an order to limit the scope of this obligation was refused.

Orders