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

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).
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.
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.
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.
Proceedings were commenced in the…

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 Reedman v Rochaix

Details

AGLC: Reedman v Rochaix [2015] NSWSC 615
Case: [2015] NSWSC 615
Decision Date: 18 May 2015

CaseChat Overview and Summary

The matter in question was between Reedman and Rochaix, with the latter seeking a transfer of proceedings to the Supreme Court from the Local Court. The basis of the dispute was a request to transfer proceedings in accordance with section 141 of the Civil Procedure Act 2005 (NSW), specifically seeking conditional costs orders. The Local Court had previously ordered that the defendant pay certain costs, subject to the outcome of the transfer application. The defendant argued that the Local Court did not have the jurisdiction to make such conditional costs orders and that the matter should be heard in the Supreme Court instead.

The legal issues that the court was required to decide involved whether the Local Court had the authority to make conditional costs orders and, if so, whether these orders should be set aside pending the determination of the transfer application. The court needed to consider the statutory framework governing the transfer of proceedings and the principles surrounding the making of costs orders. Additionally, the court needed to examine whether the conditional costs orders made by the Local Court were appropriate given the circumstances of the case.

In delivering its decision, the court first acknowledged that the Local Court does have the jurisdiction to make conditional costs orders, but only in limited circumstances. The court noted that the orders in question were conditional upon the outcome of the transfer application, which meant they could not be finally determined until the transfer application was resolved. The court held that the Local Court's conditional costs orders were inappropriate because they effectively prejudged the outcome of the transfer application. Consequently, the court set aside the conditional costs orders and dismissed the application to transfer proceedings to the Supreme Court.

The final orders of the court were that the conditional costs orders made by the Local Court be set aside and that the application to transfer proceedings be dismissed. The court made it clear that the costs orders could be reconsidered if the matter were ultimately determined in the Local Court. This decision underscores the importance of ensuring that costs orders are made in a manner that is not prejudicial to the resolution of jurisdictional questions.

Orders