Sayed v McArthur

[2019] NSWSC 1189

Supreme Court

New South Wales

Medium Neutral Citation:	Sayed v McArthur [2019] NSWSC 1189
Hearing dates:	23 August 2019
Date of orders:	23 August 2019
Decision date:	23 August 2019
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	(1)   The application is dismissed.  (2)   Costs are awarded against the plaintiff on a party-party basis and solicitor-client basis as set out in the affidavit of Matthew Twyford of today’s date. In relation to para 4(g) of that affidavit the costs awarded for today total $880 including GST.
Catchwords:	CIVIL PROCEDURE – Cross-vesting – Application to transfer to Supreme Court – No basis for application
Category:	Procedural and other rulings
Parties:	Bill Sayed (Plaintiff) Nicole Susan McArthur (Defendant)
Representation:	Counsel: In person (Plaintiff) M Twyford (Defendant)   Solicitors: Robertson Saxton Osborne Lawyers (Defendant)
File Number(s):	2019/00130223

Judgment

1. HIS HONOUR: The plaintiff in this matter proceeding by way of a summons seeks an order to transfer certain proceedings which are currently in the District Court of New South Wales into this Court. In support of the application, the plaintiff has filed two affidavits, the first affidavit having been filed on 16 June 2019 and the second on 20 August 2019, both affidavits having been affirmed by him.

2. The plaintiff also seeks to rely upon a further affidavit that was prepared for the proceedings which are current in the District Court. The plaintiff has helpfully provided me with an outline of written submissions which were filed on 20 August 2019. As well, he has handed up a document entitled “A Brief Outline of Argument” today in Court.

3. The reasons which are advanced in those two documents and which are supported by his submissions from the Bar table are as follows. Firstly, the plaintiff anticipates that the quantum of damages which are available to him in his claim in the District Court will exceed its jurisdictional ceiling, being $750,000. In support of that submission, the plaintiff relies upon his evidence to the effect of the value of a property which is in dispute, which exceeds the District Court’s jurisdictional limit. He further relies upon his intention to bring claims for malicious prosecution and personal injury, the likely damages for which, he submits, would also exceed that ceiling.

4. A second basis of the plaintiff’s application is that the issues have become so complex between himself and the defendants that it is appropriate for the matter to be transferred into this jurisdiction. Further, because the issues are continuing to evolve between the parties, it is not yet possible to reliably anticipate what the ultimate sum of damages might be. The plaintiff submits that the combined effect of the complexity involved and the evolving nature of the issues is that the damages may well exceed the District Court’s jurisdictional ceiling.

5. In the document handed up to me today, the plaintiff seeks further orders being that, and I quote:

“1.   The proceedings be stayed for a period of six months to allow the plaintiff to assess his losses.”

“2.   The plaintiff to file and serve a further amended statement of claim on current and proposed defendants on” followed by “blank”.

“3.   The first defendant to provide the plaintiff with the keys to the Woonona property on 26 August 2019 unless an application is brought by NAB seeking orders to deny him occupation.”

“4.   The first defendant is no to interfere”, which I assume to be “not to interfere”, “with the plaintiff during the term of the ADVO.”

6. The plaintiff tells me from the Bar table he has not been able to gain the assistance of any legal advice, and that his means do not enable him to employ a legal representative. Today’s appearance occurs in the context of a long history, as I understand it, of litigation between the plaintiff and the first defendant, and it is regrettable that he is unable to access legal advice in relation to these proceedings. It is also deeply regrettable that the first defendant is put to cost every time the plaintiff brings a matter to Court.

7. In my view, the basis of the application to have the matter transferred is wanting in the following respects. Firstly, there is no evidence put before me that is sufficiently detailed or reliable as to the likely quantum of damages being sought in the statement of claim, in relation to the amended statement of claim that has been filed in the District Court.

8. In any event, as has been pointed out by counsel for the first and second defendants, s 134 of the District Court Act 1973 (NSW) allows in certain circumstances for the ceiling to be breached. It is not possible to tell at this stage whether, if damages were to exceed $750,000 in the District Court, the plaintiff might be able to get relief under that section.

9. In relation to the submission that the plaintiff is contemplating seeking leave to amend his current amended statement of claim which may result in the ceiling being breached, it is sufficient to observe that that is a hypothetical situation. Leave would have to be granted, and then there would need to be some evidence as to whether the ceiling would in fact be breached.

10. In relation to the submission that the matters are so complex that they should be brought to this Court, I take judicial notice of the fact that the District Court bench is well able to handle legal argument and factual disputes of any degree of complexity, as are, certaintly, the judges of this Court.

11. Accordingly, I dismiss the application, which leaves the question of costs. Costs normally follow the outcome, and I pause at that point.

[DISCUSSION RE COSTS]

12. In this matter, I award costs against the plaintiff on a party-party basis and solicitor-client basis as set out in the affidavit of Matthew Twyford which is sworn on today's date. In relation to par 4G, the combined costs awarded for today in relation to both defendants is in the sum of $880 including GST.

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Decision last updated: 10 September 2019