Sanders-Pattinson v Brown

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sanders-Pattinson v Brown [2013] NSWCA 137

Hearing dates:

20 May 2013

Decision date:

20 May 2013

Before:

Basten JA

Decision:

(1) Dismiss the summons filed on 10 October 2012 seeking leave to appeal against the judgment and orders in the Common Law Division given and made on 31 May 2012.

(2) Order the applicant for leave to appeal to pay the respondent's costs of this motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil application to dismiss - summons seeking leave to appeal filed out of time - applicant seriously unwell - whether reasonably arguable grounds of appeal - where proceedings below summarily dismissed - whether failure to set aside would unduly burden respondents - no indication applicant's health likely to improve sufficiently to continue proceedings - summary dismissal not fatal to applicant's interests

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 12.11, 13.4, 14.28

Category:

Procedural and other rulings

Parties:

Andrew Stuart Brown (Applicant)
Paul Sanders-Pattinson (Respondent)

Representation:

Counsel:

I Griscti (Respondent)
Solicitors:

Self represented (Applicant)
Mullane & Lindsay (Respondent)

File Number(s):

2012/212673

 Decision under appeal 

Jurisdiction:

9111

Citation:

Sanders-Pattinson v Brown [2012] NSWSC 443

Date of Decision:

2012-05-31 00:00:00

Before:

S G Campbell J

File Number(s):

2010/425204

Judgment

1. BASTEN JA: This case reveals another aspect of the sorry saga of events involving the affairs of former solicitor, Charles Alroy Goldberg. The injured parties in this episode were Mr Anthony Samek and his father, Mr Valerian Samek. Acting on Mr Goldberg's advice, they lent $125,000 on an unregistered second mortgage over a property owned by Anita and Adam Whitton. It appears that the Sameks obtained a judgment against the Whittons in an amount of some $330,000, but received a payment of only $60,000, leaving a significant shortfall.

1. On 15 July 2004 the Law Society of New South Wales cancelled Mr Goldberg's practising certificate and appointed Mr Brown (the respondent to the leave application) as manager of the practice of Goldberg and Co. The Sameks, or at least Mr Anthony Samek, continued to seek redress, including from Mr Brown, in respect of the loss suffered on the Whitton loan. At least in part, the loss appears to have resulted from the lapsing of a caveat over the Whitton property, which took place after Mr Brown's appointment, namely on 2 May 2005. However, whether the fault lay with Mr Brown or Mr Goldberg is not apparent from the limited material before this Court.

1. At least from March 2005, the applicant, Mr Paul Sanders-Pattinson, acted as an agent for one or both of the Sameks.…