Smith v Baker - [2022] NSWSC 1521

Supreme Court

New South Wales

Medium Neutral Citation: Smith v Baker [2022] NSWSC 1521
Hearing dates: 11 July 2022
Date of orders: 11 July 2022
Decision date: 11 July 2022
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The District Court of New South Wales Proceedings no. 248990 of 2020 be transferred to the Supreme Court of New South Wales.
(2) The plaintiffs to pay the cost of the summons and the costs thrown away by reason of the vacation of the hearing date in the District Court of New South Wales.
(3) The plaintiffs to serve any evidence in reply on which they rely by 5 August 2022.
(4) The matter is listed in the Professional Negligence List on 4 November 2022.
(5) The matter is listed for hearing for 5 days on 27 February 2023.

Catchwords:
CIVIL PROCEDURE — jurisdiction — transfers to and from other courts — Local Court to Supreme Court — quantum of damages likely to exceed jurisdictional limit — delay on part of the plaintiff in bringing the transfer application — satisfied that prejudice to defendant can be cured through costs order and further case management

Legislation Cited:
Civil Procedure Act 2005 (NSW)

Cases Cited:
Johnstone v State of New South Wales [2006] NSWCA 105
Aitofi v The Council of the City of Sydney [2020] NSWSC 611
Thomas v Laundy (Exhibition) Pty Ltd [2016] NSWSC 1395

Category: Procedural rulings
Parties: Josephine Appa Smith (First Plaintiff)
Smith and Smith Investments Pty Ltd (Second Plaintiff)
Nouveau Pacific-A Pty Ltd (Receivers and Managers Appointed) (Third Plaintiff)
David Baker (First Defendant)
BC Legal Pty Ltd (Second Defendant)
Barbara Chang (Third Defendant)
Representation:
Counsel:
H Grace (Plaintiffs)
A Avery-Williams (Defendants)
Solicitors:
Levitt Robinson (Plaintiffs)
Gilchrist Connell (Defendants)

File Number(s): 2022/196161
Publication restriction: None

REVISED EX TEMPORE Judgment

Pursuant to a summons filed on 5 July 2022, the plaintiffs, being Josephine Smith and two corporate entities which she controls, seek damages from the defendants, being two solicitors and a related company, who are said to have provided professional services to the first plaintiff in respect of property-related matters, including the transfer of property at Pyrmont and subsequent proceedings arising out of that transfer. The claim is in the nature of a professional negligence action against solicitors who were formerly retained by the first plaintiff.
The plaintiffs seek orders transferring the proceedings from the District Court to this Court in accordance with s 140 of the Civil Procedure Act 2005 (NSW) as well as orders relating to the future conduct of the matter, including for the service of further evidence by the plaintiff, and that the matter be listed for hearing for a period of three to four days at some stage in the near future.
Mr Grace appears on behalf of the plaintiffs and Ms Avery-Williams appears on behalf of the defendants. Both counsel provided helpful submissions in respect of the issues arising.

Background to the summons

The proceedings were originally commenced in the District Court in August 2020. At…

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 Smith v Baker

Details

AGLC: Smith v Baker [2022] NSWSC 1521
Case: [2022] NSWSC 1521
Decision Date: 11 July 2022

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Smith v Baker involved a dispute between the plaintiff, Smith, and the defendant, Baker. Smith sought damages for personal injuries arising from an alleged motor vehicle accident. The case was initially filed in the Local Court, but Smith later sought a transfer to the Supreme Court, citing the quantum of damages likely to exceed the Local Court's jurisdictional limit. The defendant, Baker, opposed the transfer on the grounds of delay by the plaintiff in bringing the application and the potential prejudice to the defendant.

The court considered whether the delay on the part of Smith justified denying the transfer application and whether the prejudice to Baker could be cured through a costs order and further case management. The court noted that the plaintiff's delay in seeking the transfer was due to a genuine belief that the damages would not exceed the Local Court's jurisdictional limit. The court also found that any prejudice to Baker could be mitigated through an appropriate costs order and further case management directions. The court held that the plaintiff's delay did not preclude the transfer, and the potential prejudice to the defendant could be addressed through the court's remedial powers.

The Supreme Court allowed the transfer of the case from the Local Court to itself, subject to the plaintiff bearing the costs of the defendant in both courts. The court also directed that further case management directions would be issued to address any additional issues arising from the transfer. This decision underscores the importance of timely applications for transfer in civil proceedings, while also highlighting the court's discretion to manage prejudice through costs orders and further case management.

Orders