Reedman v Rochaix

[2015] NSWSC 615

Supreme Court

New South Wales

Medium Neutral Citation:	Reedman v Rochaix [2015] NSWSC 615
Hearing dates:	18 May 2015
Decision date:	18 May 2015
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Pursuant to s 141 of the Civil Procedure Act 2005 (NSW), District Court of New South Wales proceedings 2013/196218 in the Sydney Registry is transferred to the Supreme Court of New South Wales, Common Law Division, Professional Negligence List, in the Sydney Registry. (2) Each party must pay their own costs of this summons.
Catchwords:	PROCEDURE – transfer of proceedings – application to transfer proceedings to Supreme Court pursuant to s 141 of Civil Procedure Act 2005 (NSW) – whether certain conditional costs orders should be made
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 141
Cases Cited:	Cai v Guo [2014] NSWSC 380 Naiman Clarke Pty Limited atf Naiman Clarke Trust v Tuccia [2012] NSWSC 314 Ryner Pty Limited v Roller [2007] NSWSC 372
Category:	Procedural and other rulings
Parties:	Donald Leslie Reedman (Plaintiff) Jason Matthew Rochaix, Arundale Jakeman Johnstone and Jeffrey Dennis Pails trading as Page, Harrison & Co (First Defendant) Jeffrey Dennis Pails (Second Defendant)
Representation:	Counsel: P Silver (Plaintiff) S Climpson (Defendants)   Solicitors: McCabes (Plaintiff) T H Walker (Defendants)
File Number(s):	2015/98512

EX TEMPORE Judgment

Introduction

1. By way of summons of 2 April 2015, the plaintiff has sought to have proceedings currently pending in the District Court of New South Wales transferred to this Court, pursuant to s 141 of the Civil Procedure Act 2005 (NSW).

2. The defendants have not opposed that order, but do seek that it be conditional, in the sense that specific costs orders be made by me and that they be payable forthwith before any transfer take place. Alternative orders were also proposed by the defendants, including that an unspecified sum be paid by the plaintiff to the defendants with regard to an order for costs made in the District Court on 12 March 2015; or, in the further alternative, that costs previously ordered be payable forthwith.

3. At first, the plaintiff sought only that costs of the application to transfer be costs in the proceedings. Once it was clear that this question of costs would itself become a dispute that was neither short nor uncomplicated, costs of the summons were sought by the plaintiff if the plaintiff succeeded with regard to transfer and with regard to resisting the orders for costs sought by the defendant.

4. The background may be succinctly stated. The plaintiff has sued the first defendant, a firm of accountants, and the second defendant, a partner in that firm who, it is alleged, exercised a Power of Attorney on behalf of the plaintiff, in professional negligence and other causes of action. In a nutshell, it is said that the plaintiff was negligently advised to invest in two residential properties, one at Glebe and one at Camperdown, and as a result of each of those investments, he lost a great deal of money.

5. Proceedings were commenced in the District Court with regard to the premises at Glebe only. That claim was within the jurisdictional limit of that court. In due course, the plaintiff moved to amend his statement of claim to include a claim with regard to the premises at Camperdown as well. That amendment was opposed by the defendants, but was granted by Judge Elkaim SC.

6. In the Court below, costs thrown away as a result of that amendment were granted to the defendants. However, an application by the defendants that those costs be assessed and paid immediately was rejected by his Honour.

7. Counsel for the plaintiff explained to me that he regards that costs order as prospective. By that I understood him to mean that it applies not only to any costs that the defendants can establish were thrown away before the amendment as a result of it being made, but also to any costs incurred in the future that the defendants may be able to demonstrate were thrown away as a result of the amendment having been made in the past.

Submissions

8. Counsel for the plaintiff submitted that the transfer was a virtual inevitability, once the order for amendment was made in the District Court. He accepted that, in a global sense, the plaintiff may be said to be forensically at fault for not commencing in the Supreme Court, and not commencing by pleading with regard to both properties. Nevertheless, he submitted that that fault is amply compensated by the costs order already made in favour of the defendants.

9. He also submitted that, whilst there will undoubtedly be some delays with regard to the collation of evidence and so forth by way of the amendment, it is not easy to see how the transfer of itself can give rise to delays, except perhaps in listing differences between the District Court and Supreme Court.

10. Counsel for the defendants submitted that the claim about Camperdown should have been included in the original claim; that no satisfactory explanation has been given for that forensic failing; that costs have been wasted as a result of that management of that litigation by the plaintiff; and that, exercising my discretion and bearing in mind the interests of justice, it would be appropriate for me to impose conditions now, including specific costs orders, before I would permit the transfer to occur and the proceedings to continue.

Determination

11. Turning to my determination, I have no difficulty accepting that, in a perfect world, the original proceedings would have made claims with regard to both properties and would have commenced in the Supreme Court. I also accept that, to the extent that that did not occur, the defendants should have any costs arising from that forensic failing on the part of the plaintiff. But I respectfully reject the proposition that I should make a further costs order above and beyond the one made by his Honour on 12 March 2015, and to which I have referred.

12. To my mind, the question of transfer to this Court was highly ancillary to the question of amendment. I infer that it was clear to all parties, once a claim was being sought to be made with regard to Camperdown as well as Glebe, that, if that claim were permitted by way of amendment, then it was extremely likely that there would be an application to transfer.

13. It is true that, in other cases, single judges of this Court have made orders sought in the nature of those sought by counsel for the defendants: see Cai v Guo [2014] NSWSC 380; Ryner Pty Limited v Roller [2007] NSWSC 372; and Naiman Clarke Pty Limited atf Naiman Clarke Trust v Tuccia [2012] NSWSC 314. But it can be seen that in those cases the question of a process giving rise to the transfer application and the transfer itself were not dealt with separately.

14. Here, to repeat, the question of amendment has already been litigated, and the defendants have been given a retrospective and prospective costs order with regard to any costs thrown away by the amendment.

15. To my mind, the defendants are sufficiently protected by that extant order. As well, any extra delay that may be occasioned by listing that will arise from the transfer of the matter to this Court does not call for the making of any of the conditional orders sought by the defendants. Furthermore, any such further delay does not justify the making of any costs orders in specific sums now.

16. In the circumstances, I consider that transfer is soundly appropriate, in accordance with the principles set out in s 56 of the Civil Procedure Act. I decline to make any of the costs orders sought by the defendants.

Costs of the summons

17. Because the question became a fully litigated one, and the plaintiff has had success with regard to it, I would have thought that normally the appropriate order would be that the defendants pay the costs of the summons. To be weighed against that is the fact that this summons, and this dispute about costs, would have been unnecessary if everything had initially proceeded as it should have. Ultimately, as a matter of discretion, I have come to the view that each party must pay its own costs of this summons.

Orders

18. I make the following orders:

1. Pursuant to s 141 of the Civil Procedure Act 2005 (NSW), District Court of New South Wales proceedings 2013/196218 in the Sydney Registry is transferred to the Supreme Court of New South Wales, Common Law Division, Professional Negligence List, in the Sydney Registry.

2. Each party must pay their own costs of this summons.

**********

Decision last updated: 22 May 2015