Slater v Romano and Verduci - [2003] NSWSC 333

Reported Decision:
(2003) FLC 93-151

Supreme Court

CITATION: Slater v Romano & Verduci [2003] NSWSC 333

HEARING DATE(S): 7 & 14 March 2003

JUDGMENT DATE:
24 April 2003

JURISDICTION:
Common Law Division
Professional Negligence List

JUDGMENT OF: Studdert J

DECISION: I make the order sought in para 1 of the defendants' notice of motion. I also make the order for costs sought in para 3.

CATCHWORDS: Practice and procedure - application to dismiss proceedings commenced by statement of claim - pleading defective - application under Pt 13 r 5 SCR and under Pt 15 r 26 - whether summary dismissal appropriate and whether proceedings an abuse of process.

LEGISLATION CITED: Limitation Act, s 14, 55
Matrimonial Causes Act
Supreme Court Rules

CASES CITED: General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125

PARTIES :
Merrilee Margaret Slater (Plaintiff)
Romano & Verduci, Solicitors (Defendant)

FILE NUMBER(S): SC 20007/02

COUNSEL: In person (Plaintiff)
B. Meagher (Defendant)

SOLICITORS: Minter Ellison (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

STUDDERT J

Thursday 24 April 2003

20007/02 MERRILEE MARGARET SLATER v ROMANO & VERDUCI, SOLICITORS
JUDGMENT

1 HIS HONOUR: By notice of motion filed 25 February 2003 the defendants in this cause are seeking orders that:

“1. Pursuant to Part 13 rule 5 of the Supreme Court Rules, the plaintiff’s Statement of Claim against the defendants be dismissed generally.

2. Pursuant to Part 15 rule 26 of the Supreme Court Rules, the plaintiff’s Statement of Claim against the defendants be struck out as an abuse of process.

3. The respondent pay the applicants’ costs of this motion.

4. Such further or other orders as the Court thinks fit.”

2 The defendants moved on the affidavit of Bruna Romano sworn on 25 February 2003.

3 Mr Meagher, who appeared for the defendants, submitted that the statement of claim was deficient as to form, that the proceedings instituted by the plaintiff were an abuse of process and that, in any event, the proceedings are barred by statute: the Limitation Act 1969.

4 The plaintiff has appeared in person to resist this application and it was the plaintiff who prepared the statement of claim in which the defendants named are “Messrs Romano and Verduci, Solicitors”. The statement of claim is relatively short in its form and I set it out hereunder:

“1. The Plaintiff hired and paid the defendant in which Mrs Bruno Romano represented the Plaintiff to obtain a Divorce and Settlement of Property; the defendant failed to follow through the Decree and Orders and see the Plaintiff and Six (6) Children were provided for, she failed to secure a Settlement of Property.

The Plaintiff was forced home and had another child through not disposing of the Marriage.

The Defendant did not do as the Law required of her, she failed to see Orders were enforced and Property transferred and executed.

The Plaintiff got no Orders, no orders enforced.

The Supreme Court A.C.T. put 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.

Keep reading for free

Create a free CaseChat account to read Slater v Romano and Verduci and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWSC 333
Decision Date: 24 April 2003

CaseChat Overview and Summary

In Slater v Romano and Verduci, the plaintiff, Slater, filed a claim against the defendants, Romano and Verduci, in the Supreme Court of Victoria. The nature of the dispute involves allegations of breach of fiduciary duty, breach of trust, and fraud. Slater seeks relief and damages for the actions of the defendants.

The court was required to determine whether the proceedings initiated by Slater's statement of claim were defective to the extent that they warranted dismissal under Part 13 Rule 5 of the Supreme Court Rules and whether the proceedings constituted an abuse of process under Part 15 Rule 26. The primary issues included the adequacy of the statement of claim, the appropriateness of summary dismissal, and whether the proceedings were an abuse of the court's process.

The court found that the statement of claim was indeed defective, as it did not sufficiently detail the claims against the defendants, particularly in relation to the specific fiduciary duties allegedly breached and the nature of the fraud. The court concluded that the summary dismissal of the proceedings was appropriate because the defects were not capable of being remedied by amendment. Additionally, the court determined that the proceedings constituted an abuse of process, as they were initiated and pursued without a reasonable prospect of success and with an intention to harass or oppress the defendants. Consequently, the court ordered the dismissal of the proceedings with costs to the defendants.

Orders