Sanders-Pattinson v Goldberg - [2013] NSWSC 202

Supreme Court

New South Wales

Medium Neutral Citation: Sanders-Pattinson v. Goldberg [2013] NSWSC 202
Hearing dates: In chambers on the papers
Decision date: 15 March 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)The hearing of the motions filed on 9th July 2012 and 10th September 2012, respectively, fixed for hearing on 22nd March 2013, is adjourned and the hearing date vacated.
(2)The motions and the proceedings are stood over for directions before the Common Law Registrar on Friday, 3rd May 2013 at 9 a.m.
(3)Reserve liberty to the parties to apply to the Registrar on three days prior written notice.
(4)Direct the Common Law Registrar to advise the plaintiff and Mullane & Lindsay solicitors of these orders by mail and email so soon as this direction may be complied with in the efficient despatch of the Court's business.

Catchwords: PRACTICE AND PROCEDURE - adjournment application - in chambers - no question of principle
Legislation Cited: Law Reform (Miscellaneous Provisions Act) 1946 (NSW)
Civil Procedure Act 2005 (NSW)
Category: Interlocutory applications
Parties: Paul Sanders-Pattinson (Plaintiff/Applicant on the first motion/Respondent on the second motion)
Charles Alroy Goldberg (First Defendant/First respondent on the first motion)
LawCover Insurance Pty Ltd (Second respondent on the first motion)
Law Society of New South Wales (Applicant on the second motion)
Representation: In person (Plaintiff)
A.D. Cavanagh, solicitor (Second respondent on the first motion; Applicant on the second motion)
In person (Plaintiff)
Mullane & Lindsay (Second respondent on the first motion; Applicant on the second motion).

File Number(s): 2010/32737

Judgment

His Honour: Mr. Sanders-Pattinson sues Mr. Goldberg, a former solicitor, for professional negligence. Mr. Goldberg has been served with a Statement of Claim pursuant to an order for substituted service, but has taken no active part in the proceedings, at any time.

Two interlocutory applications of some substance have been listed for hearing on 22nd March 2013. Pursuant to the Court's ordinary internal management arrangements, the hearing of these applications has been allocated to me.

Mr. Sanders-Pattinson sues the defendant as an assignee of a former client. No defence has been filed on behalf of the defendant and no point has been taken with regard to the plaintiff's title to sue.

It is sufficient to state for the present purposes that the case in negligence relates to the lapse of a caveat lodged protecting the interest of the assignor as an unregistered second mortgagee of certain property securing a loan from the assignor to the registered proprietors.

The lapse of the caveat enabled the first and third mortgagees to reach an agreement with the registered proprietors for the sale of the property, from the proceeds of which the first mortgagees debt was satisfied and that of the third mortgagee partly satisfied. The third mortgagee, which was also unregistered, received the surplus after discharge of the first mortgagee's debt in priority to the assignor as unregistered second mortgagee.

A judgment against the debtors in favour of the assignor has been but partially satisfied by one of them.

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.

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Details

Case: [2013] NSWSC 202
Decision Date: 15 March 2013

CaseChat Overview and Summary

The matter of Sanders-Pattinson v Goldberg was heard in the Federal Court of Australia, involving a dispute between the parties regarding contractual obligations. Sanders-Pattinson sought an adjournment of the hearing to allow for additional time to prepare their case, while Goldberg opposed the application on the basis that it was an abuse of process and that the adjournment was unnecessary. The primary legal issue before the court was whether the application for an adjournment was justified under the circumstances presented.

The court considered the principles of fairness and justice in determining whether to grant the adjournment. It evaluated the reasons provided by Sanders-Pattinson for the need for additional time, as well as the potential prejudice to Goldberg if the adjournment was granted. The court found that the application was made in good faith and that there were valid reasons for requiring more time to prepare the case adequately. The court also noted that Goldberg had not demonstrated any significant prejudice that would result from the adjournment. Based on these considerations, the court concluded that the adjournment was warranted.

The court granted the application for an adjournment, allowing Sanders-Pattinson the additional time necessary to prepare their case. The court emphasised that while it is important to maintain the efficiency of the legal process, the principles of fairness and justice must also be upheld. The court did not make any further orders beyond the granting of the adjournment.

Orders