Strata Plan 61287 v Brookfield Multiplex Limited (No 2)
[2011] NSWSC 1631
•06 December 2011
Supreme Court
New South Wales
Medium Neutral Citation: Strata Plan 61287 & Anor v Brookfield Multiplex Limited & Ors (No 2) [2011] NSWSC 1631 Hearing dates: Tuesday, 6 December 2011 Decision date: 06 December 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Proceedings adjourned
Catchwords: PRACTICE AND PROCEDURE - Application for former solicitor to indemnify second plaintiff for costs ordered to be paid by it - indication that first plaintiff may make similar application - solicitor files evidence late - solicitor then proposes to rely on no evidence - findings against solicitor not lightly made but have serious consequences - prospect of inconsistent findings in associated proceedings - risk of injustice and inconsistent findings entail adjournment preferable course. Legislation Cited: (NSW) Civil Procedure Act 2005, s 99 Cases Cited: Strata Plan 61287 & Anor v Brookfield Multiplex Limited & Ors [2011] NSW SC 1302 Category: Procedural and other rulings Parties: Owners Corporation SP 61287 (first plaintiff)
Owners Corporation SP 61288 (second
plaintiff/applicant on notice of motion)
Brookfield Multiplex Limited (first defendant)
Multiplex Corporate Agency Pty Limited
(second defendant)
Building Insurers Guarantee Corporation
(third defendant)
David Maccallum (respondent)Representation: Counsel:
F Corsaro SC with P Bambagiotti (second plaintiff/applicant)
D Weinberger with T Gordon (respondent)
Solicitors:
Grace Lawyers Pty Ltd (applicant)
Colin Biggers Paisley (respondent)
File Number(s): 2008/290669
Judgment (ex tempore)
HIS HONOUR: This is the appointment for hearing of the second plaintiff's application for an order pursuant to (NSW) Civil Procedure Act 2005, s 99, that its former solicitor, Mr MacCallum indemnify it in respect of the costs that it was ordered to pay, pursuant to the judgment I gave on 2 November 2011 in Strata Plan 61287 & Anor v Brookfield Multiplex Limited & Ors [2011] NSW SC 1302 (at [27]-[30]), and reimburse associated solicitor/client costs.
When the matter was called on this morning, the second plaintiff applied for an adjournment on the basis that late service of the respondent's affidavit sworn 1 December 2011 - which ought, pursuant to directions made in respect of the motion, have been served not later than 30 November - had deprived it of a reasonable opportunity to adduce evidence in reply. The respondent's counsel said that this was really an attempt to cure the second plaintiff's case in chief, and when asked whether he was prepared to proceed if the late served affidavit were not permitted to be read, indicated (after a short adjournment and obtaining instructions) that he was.
Subsequently, the second plaintiff has drawn attention to the possibility that the first plaintiff might also be minded to make a similar application after a meeting, which is scheduled to be held later this week. This meeting might also potentially change the first plaintiff's legal representation.
Generally speaking, I do not encourage applications under s 99, particularly when made during proceedings, because they tend to divert attention from the prosecution of the substantive proceedings and they are often misconceived. However, the second plaintiff is exposed to a substantial liability, and it is plain from the submissions filed on its behalf that it has at least given close attention to the appropriate test and what must be established on such an application. That is by no means to say that it will succeed, but it does tend to reduce my usual concern that many of these applications are misconceived from the outset.
Such an application involves establishing a level of delinquency on the part of the practitioner that can be categorised as serious default, neglect or misconduct. Such a finding is a serious one not lightly to be made. While I am mindful of counsel for Mr MacCallum's bold acceptance of the risk of proceeding without evidence from Mr MacCallum, I am troubled that to do so would potentially involve making serious findings against him, on the basis of inference, when the Court knows (from the evidence on the adjournment application) that there is, in truth, a serious underlying factual dispute.
This discomfort is accentuated by the circumstance that, potentially, a similar application might be made by the first plaintiff, which would involve the Court being invited to make findings on exactly the same tests and in respect of the same issues as in the present application, but potentially on different evidence with different available inferences and inconsistent results.
In short, I am left with the uncomfortable feeling that to proceed to hear this application today would involve a much greater risk of injustice, particularly to Mr MacCallum, than to adjourn the proceedings.
While I am mindful that Mr MacCallum and those representing him are prepared to take that risk, when coupled with the concerns about inconsistent findings in associated proceedings I have come to the conclusion that an adjournment is the preferable course.
**********
Decision last updated: 18 January 2012
0
0
1