Riva NSW Pty Ltd Can 113 881 815 v Key Nominees Pty Ltd and Chris Stomo

[2014] NSWSC 389

Supreme Court

New South Wales

Medium Neutral Citation:

Riva NSW Pty Ltd CAN 113 881 815 v Key Nominees Pty Ltd & Chris Stomo [2014] NSWSC 389

Hearing dates:

21 March 2014

Decision date:

21 March 2014

Jurisdiction:

Equity Division

Before:

Young AJA

Decision:

Dismiss the case against the second defendant.

Plaintiff to pay the second defendants costs.

No fresh proceedings are to be commenced by the plaintiff on the same causes of action without the leave of the court. That leave to be obtained prior to commencement of any fresh proceedings.

Legislation Cited:

Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Riva NSW Pty Limited v Key Nominees Pty Limited [2014] NSWSC 301

Category:

Principal judgment

Parties:

Riva NSW Pty Ltd CAN 113 881 815 (plaintiffs)
Key Nominees Pty Ltd (first defendant)
Chris Stomo (second defendant)

Representation:

Counsel:
Mr RA Parsons (first defendant)
Ms PA Horvath (second defendant)
Solicitors:
Beau Jackson (first defendant)
Moray & Agnew (second defendant)

File Number(s):

2012/173688

Publication restriction:

Nil

Judgment - Ex tempore

1. HIS HONOUR: This is a motion to strike out a claim against the second defendant who is a barrister. These proceedings commenced in 2012 in respect of alleged conduct mainly in 2006. They have had quite a history in this Court which was dealt with, amongst others places, in a judgment that I gave earlier this morning Riva NSW Pty Limited v Key Nominees Pty Limited [2014] NSWSC 301 and I will not repeat what I said there. What I did there was to confirm the order that I had made earlier that the proceedings be dismissed against the first defendant. In the judgment I pointed out that for a number of reasons the current pleading against the first defendant was embarrassing and that was so notwithstanding the fact that I had struck out a previous embarrassing pleading and given three months to replead on a last chance basis.

2. For some reason or other the second defendant did not join in that motion, but has now filed a motion to strike out the case against him. That case in the pleadings is intermingled with the case against the first defendant, Key Nominees. It is a little confusing in that the last chance version of the pleadings that was handed up on 4 March and the revised last chance pleading which was handed up subsequently, although the text is similar are differently paginated, I will refer to the numbers in the "revised last chance version".

3. The key pleading against Mr Stomo commences at paragraph 28. It pleads that in the period November 2005 to 1 September 2006 Mr Stomo was retained (a) by; (b) further or alternatively to act for, as required: (c) the Ferellas; (d) further or alternatively, the trustees, in relation to certain matters.

4. Although these days ‘alternatively’ pleadings are allowed up to a point, Ms Horvath for the second defendant puts that that pleading is embarrassing because the defendant cannot really address it. There are so many permutations and combinations that are embarrassing to plead to. Furthermore, the pleading does not allege that there was any consideration given for the retainer.

5. In the particulars there is mention that Mr Stomo issued tax invoices which were paid (A) by the Ferellas; or (B) alternatively by the trustees (It is odd that people do not know who paid the bill!), but that does not remedy the defect that there has been not been an allegation that the retainer was for reward.

6. Paragraph 29 then deals with terms but not the whole of terms of the alleged retainer and it says that the barrister would act on instructions of Angelo Ferella, on behalf of the Ferellas or the trustees, and that he would carry out his instructions. It is quite common to plead that way with a solicitor if there is a solicitor in contract bound to carry out the instructions, but it is a rather novel suggestion that a barrister has to carry out instructions especially in a Court matter. Barristers often have duties to the Court and cannot carry out their instructions, and often to the Bar Rules prevent barristers carrying out instructions, such as the famous "no case just abuse the other side” instructions that solicitors once gave.

7. However, that is probably a minor matter even though 29 goes over from pages 14 to 16 and is prolix.

8. Paragraph 30 sets out a duty of care, again in the alternative and it would seem that this is a pleading of a tortious duty of care, but it is quite unclear.

9. Paragraph 31 gives some particulars as to what dealings the barrister had and it contains a table, which merely lists by date 17 letters or telephone conversations without really elucidating what they were all about. The pleading then from 31 through to 58 deals with the first defendant leaving up in the air the case against the second defendant. It comes back to the case against the second defendant in par 58.

10. Paragraph 58 pleads that in the relevant period Angelo Ferella was the agent and/or was authorised by the Ferellas or the trustees to make and receive oral and written communications for the barrister with relation to the matter. It does not seem to take it beyond making Angelo Ferella a mailbox.

11. However 59, a paragraph which commences on p 32 and finishes on p 39, pleads a whole series of matters, including that the barrister breached a contract to provide information, breached a contract by not providing advice, or at least any proper advice, failed to act on instructions and failed to give the client all relevant documents. Whether these are separate claims in contract or part of a general rolled up negligence count, it is completely unclear. The paragraph is embarrassing and prolix. I mention prolixity because in my earlier judgment against the first defendant I set out the Uniform Civil Procedure Rules 2005 (NSW) as to the requirement that pleadings must be as brief as the nature of the case requires (Part 14 Rule 8 and other rules) which this document blatantly breaches.

12. Paragraph 60, which goes on for a further three pages sort of fleshes out these materials in 59 without taking the matter any further, but making the task of a person who wishes or has to plead to it even more difficult.

13. Paragraph 61 is bizarre. It goes on from pages 42 to 45 and suggests that by being involved in the matter, on behalf of either the Ferellas or the trustees, that fact meant that the barrister made representations that he had the requisite ability, skill, the expertise to provide advice and that he would provide all appropriate and reasonable information and give all reasonable and appropriate advice. It does not seem to be that the representations flowed from anything that was said, but on the other hand the particulars on page 45 would say the contrary. It seems to suggest that by being involved in the matter on behalf of the Ferellas the barrister was in breach of the obligation under the Trade Practices Act 1974 (Cth) not to engage in false and misleading conduct. The misleading conduct appearing to be that the Ferellas or the trustees would assume that he was capable to give advice when he was not. All that is wrapped up in a whole series of other and different allegations and there is no allegation that the barrister was involved in trade and commence. Also, however, I should say that there are some mentions of the Fair Trading Act 1987 (NSW) though the principal thrust is on the Trade Practices Act.

14. There is probably little sense in going through the rest of the document. It is clearly embarrassing and it is almost impossible for a party to plead to it. It should be struck out. But what should happen? Normally when a pleading is struck out the pleader is given leave to replead, but this is not the normal case. The pleading came before me last year and I struck it out and gave three months to replead. Although the second defendant was not involved in the motion to strike it out, it was clear that the liberty to reformulate the pleading was to reformulate the pleading generally, yet the same allegations are being made against the second defendant without any real modifications in the revised late final version.

15. I think in the circumstances it is probably wrong to let this case continue in the list any further. I should not give leave to replead, but merely dismiss the case also against the second defendant with costs.

16. Accordingly, unless there is an appeal the proceedings are now finished.

**********

Decision last updated: 13 March 2015