Sciacca v Langshaw Valuations Pty Ltd - [2012] NSWSC 1450

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sciacca v Langshaw Valuations Pty Ltd [2012] NSWSC 1450
Hearing dates: 26 November 2012
Decision date: 27 November 2012
Before: McCallum J
Decision:
See [74] of the judgment

Catchwords:
PROCEDURE - costs - appeals as to costs - mistake of law - general rule that costs follow the event only displaced by disentitling conduct - third defendant to pay plaintiff's costs of motion.
PROCEDURE - discovery and interrogatories - discovery and inspection of documents -competent legal advice does not necessarily ensure that the obligations of a subpoena have been complied with- it was open to the deputy registrar to order the third defendant to attend court to be examined in respect of its response to the subpoenas.
Legislation Cited: Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Hexiva Pty Limited v Lederer [2006] NSWSC 561
House v The King (1936) 55 CL 499
Jackamarra v Krakouer [1998] HCA 27 (1998) 195 CLR 516
Pyoja Pty Limited v 284 Bronte Road Developments [2006] NSWSC 831; (2006) 67 NSWLR 1
Tomko v Palasty (No 2) [2007] NSWCA 369
Trade Practice Commission v Arnotts Limited (No 2) (1989) 21 FCR 306
Category: Interlocutory applications
Parties: Frank Sciacca (first plaintiff)
Maura Spresian (second plaintiff)
Rosie Iannelli (third plaintiff)
Vero Insurance (third defendant)
Representation: Counsel:
H Stitt (plaintiffs)
D Lloyd (third defendant)
Solicitors:

File Number(s): 2011/90522

JUDGMENT - EX TEMPORE

HER HONOUR: These are proceedings for professional negligence arising out of a loan made by the plaintiffs as private lenders. The borrowers, who are alleged to be the rogues in the transaction, are not parties to the proceedings. The loan not having been repaid, it transpired that the security ostensibly held for the loan, being some shares and a property owned by the borrowers, was of inadequate value to satisfy the borrowers' obligations to the plaintiffs. The plaintiffs now sue a number of professionals arising out of those events, including two mortgage brokers.

The issues raised by the present applications concern the third defendant, Vero Insurance Limited, which is sued as the professional indemnity insurer of one of the mortgage brokers, Integrity Mortgage Professionals Pty Ltd (IMP). IMP having been deregistered in 2009, the claim against Vero is brought under s 601AG of the Corporations Act 2001 (Cth).

The plaintiffs allege that "at all material times" there was an insurance contract between Vero and IMP which covered IMP's alleged liability to the plaintiffs in negligence (further amended statement of claim filed 14 June 2012 at paragraphs 38 and following). Vero filed a defence on 9 August 2012 in which it denies those contentions. In those circumstances, a critical issue raised on the pleadings is the existence of a relevant contract of insurance.

The plaintiffs initially sought informal production of documents relating to that issue and ultimately, on 23 April of this year, served a subpoena on Vero seeking production of such documents. Vero responded by asserting…

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 Sciacca v Langshaw Valuations Pty Ltd

Details

AGLC: Sciacca v Langshaw Valuations Pty Ltd [2012] NSWSC 1450
Case: [2012] NSWSC 1450
Decision Date: 27 November 2012

CaseChat Overview and Summary

The case of Sciacca v Langshaw Valuations Pty Ltd involved the plaintiff seeking costs from the third defendant, Langshaw Valuations Pty Ltd, in relation to a motion. The dispute arose from a broader context of legal proceedings where the plaintiff was pursuing claims against multiple defendants. The matter was brought before the court to determine the appropriate allocation of costs and the handling of discovery and interrogatories.

The primary legal issue the court had to address was whether the third defendant's conduct warranted a deviation from the general rule that costs follow the event, particularly in the context of their response to subpoenas. Additionally, the court needed to consider whether the third defendant's reliance on legal advice negated their obligations under the subpoenas and whether it was appropriate to order the third defendant to attend court for examination.

The court determined that the third defendant's reliance on legal advice did not absolve them from complying with the obligations of a subpoena. The court held that the third defendant's conduct was such that it disentitled them from the usual rule of costs following the event. Consequently, the court ordered the third defendant to pay the plaintiff's costs associated with the motion. Furthermore, the court found it was open to the deputy registrar to require the third defendant to attend court to be examined regarding their response to the subpoenas, highlighting the importance of ensuring compliance with court orders despite the presence of legal advice.

In conclusion, the court ordered Langshaw Valuations Pty Ltd to pay the plaintiff's costs of the motion. The court also emphasised that competent legal advice does not necessarily exempt a party from complying with the obligations of a subpoena, reinforcing the importance of adherence to court processes.

Orders