Patial v Kailash Lawyers Pty Ltd - [2025] NSWSC 219

Supreme Court

New South Wales

Medium Neutral Citation: Patial v Kailash Lawyers Pty Ltd [2025] NSWSC 219
Hearing dates: 11 February 2025
Date of orders: 21 March 2025
Decision date: 21 March 2025
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1)   Mr Patial’s motion be dismissed with an order that he pay Kailash Lawyers’ costs of that motion on an indemnity basis.
(2)   Mr Patial also pay the costs of Kailash Lawyers’ motion, as agreed or assessed.
(3) Pursuant to s 140 of the Civil Procedure Act the District Court proceedings be transferred to this Court.
(4) Pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) both these proceedings, no 2024/00283199, and the District Court proceedings, no 2024/00286813, be transferred to the Federal Court with a view to being heard and determined together with matter no NSD1016/2021 in that Court.
(5)   The listing before the Registrar on 11 April 2025 be vacated.

Catchwords:
CIVIL PROCEDURE – transfer of proceedings – other proceedings on foot in Federal Court and District Courts – application to have District Court proceedings transferred to Supreme Court and then for both State proceedings to be transferred to Federal Court –transfer ordered
CIVIL PROCEDURE – pleadings – application to strike out late filed defence and entry of default judgment– application dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 140,
Fair Work Act 2009 (Cth) ss 604, 725, 729
Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) ss 5, 5(1), 8
Legal Profession Uniform Law (NSW)
Superannuation (Administration) Act 1992 (Cth)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) rr 14, 14.3, 14.3(1), 14.28, 16.2(1), 16.2(2)(c), 42.1

Cases Cited:
Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418; [1996] HCA 39
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1
BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61
Bushby v McKenzie (1991) 19 SR (NSW) 104
Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131
CHP Asset Management Pty Limited v Maison Global Property Pty Limited [2023] NSWSC 992
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gemma Constantinidis v Maxwell William Prentice in his capacity as trustee for the Estate of George Constantinidis [2023] NSWSC 128
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
In the matter of Patial [2023] HCATrans 095
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Patial v Kailash Lawyers Pty Ltd [2021] FWC 4167
Patial v Kailash Lawyers Pty Ltd [2021] FWCFB 6055
Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (No 1) [2022] FCA 662
Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2023] FCAFC 155
Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2024] FCA 179
Re…

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: [2025] NSWSC 219
Decision Date: 21 March 2025

CaseChat Overview and Summary

The case of Patial v Kailash Lawyers Pty Ltd involved a dispute between the plaintiff, Patial, and the defendant, Kailash Lawyers Pty Ltd, concerning a legal services agreement. The plaintiff sought to have proceedings that were ongoing in both the District Court and Federal Court transferred to the Supreme Court. After some proceedings had transferred, the plaintiff then sought to have all proceedings consolidated in the Federal Court. In the District Court, the plaintiff also sought to strike out a late filed defence and for a default judgment to be entered against the defendant.

The court was required to consider the appropriate forum for the resolution of the dispute, including whether the proceedings should be transferred from the District Court to the Supreme Court and then to the Federal Court. The court also had to determine whether the defendant's late filed defence should be struck out and whether a default judgment should be entered.

The court found that the Federal Court was the appropriate forum for the resolution of the dispute and ordered the transfer of the District Court proceedings to the Supreme Court and then to the Federal Court. The court held that the defendant's late filed defence should not be struck out and that there were no grounds for a default judgment. The court dismissed the application to strike out the defence and for a default judgment.

The court ordered that the proceedings be transferred from the District Court to the Supreme Court and then to the Federal Court for consolidation. The application to strike out the defence and for a default judgment was dismissed.

Orders