Wakim v Ling (t/a Mee Ling Solicitors) (No 2)
[2013] NSWSC 530
•08 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Wakim v Ling (t/a Mee Ling Solicitors) (No 2) [2013] NSWSC 530 Hearing dates: 8 May 2013 Decision date: 08 May 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Motion dismissed. Plaintiff to pay Defendant's costs forthwith.
Catchwords: No question of principle. Category: Interlocutory applications Parties: Elias George Wakim (Plaintiff)
Paul Adrian Mee Ling (Defendant)Representation: Counsel:
A.S. Margiotta (Sol) (Plaintiff)
Ms C.J. Branch (Sol) (Defendant)
Solicitors:
Margiotta Solicitors (Plaintiff)
Gilchrist Connell (Defendant)
File Number(s): 2012/018593
EX TEMPORE Judgment
Before me is prayer 1 of a notice of motion filed 7 February 2013 seeking the dismissal of the proceedings for the failure of the plaintiff to provide particulars over a sustained period.
The statement of claim was filed in January 2012, but was not served until 17 July 2012. The facts that are said to give rise to the cause of action against the defendant concern the conduct of the defendant as the plaintiff's solicitor during the period of 2003 to 2008.
After the statement of claim was served, the matter came before the Court on various occasions. On 17 September 2012 the Court ordered, by consent, that the defendant request further and better particulars of the statement of claim by 2 October 2012 with the plaintiff to reply by 23 October 2012. On 27 September 2012 the defendant's solicitor wrote seeking further and better particulars. However, no reply to that request was provided prior to the filing of the notice of motion. I should add that the statement of claim is a lengthy and prolix document. At the very least, it needs further particularisation.
I will not recount all the events that occurred between those requests for particulars and the filing of the notice of motion. At some point an issue was raised about the plaintiff's capacity to bring the proceedings without the assistance of a tutor. A medical report was provided to the Court which indicates that he has that capacity, provided he takes his medication.
Prayer 2 of the notice of motion filed by the defendant sought, in the alternative, an order that the plaintiff's then solicitor cease to act. The basis for this application was that there was a likelihood that it would be alleged that he was a concurrent wrongdoer with the defendant and would therefore have a conflict of interest. At some point that solicitor had indicated that he proposed to cease to act in the proceedings.
The defendant's notice of motion came before Schmidt J on 13 March 2013. On the application of the plaintiff, who was then represented by his former solicitor, her Honour adjourned the matter until 3 April 2013. In the course of her judgment her Honour stated as follows:
"Given the history of the proceedings, any further adjournment applications are unlikely to be entertained. The proceedings have been stalled by Mr Wakim's failure to provide answers to particulars in circumstances where he fell ill. Now that he is recovered those answers should be provided promptly if he expects to resist Mr Ling's motion."
The proceedings then came before me as duty judge on 3 April 2012. The particulars ordered to be provided had not been provided by that time. The plaintiff was then represented by Mr Margiotta, solicitor. He explained that he had only just received instructions to act on behalf of Mr Wakim and at that point he did not have much detail concerning the proceedings. On the undertaking of Mr Margiotta to file a notice of appearance, I granted a further adjournment of the motion until today. I ordered the plaintiff to pay the defendant's costs. Consistent with his undertaking, Mr Margiotta filed a notice of appearance.
When the matter was called on today, it emerged that answers to the particulars had been provided late last night. The solicitor for the defendant indicated that she was dissatisfied with those answers. She submitted that they were generally not responsive. I am not in a position to assess those matters. All I can say is that on my brief perusal that there was, at least with some of the answers, a genuine attempt to address the question asked, which is a far better response than has been attempted by the predecessors to Mr Margiotta.
In light of the fact that answers have been provided, it seems to be accepted that the best course is that the balance of the notice of motion should be dismissed. In so stating, neither the solicitor for the defendant, nor the Court is taken to be accepting that the answers to the particulars that were given were responsive or acceptable. However, the best course seems to be for the defendant to consider those answers and then determine their next step, whether that be to seek further particulars, to strike out the statement of claim or to seek directions for the further conduct of the proceedings.
However, the solicitor for the defendant seeks that the plaintiff pay her client's costs of the motion and that they be payable forthwith. I see no possible basis upon which the plaintiff could resist paying the costs of the motion. The order for particulars was, as I have said, made in September 2012 and was only complied with late last night with an axe hanging over the plaintiff's statement of claim.
The more difficult question concerns whether costs should be paid forthwith. Mr Margiotta points to the plaintiff's illness and also to his impecunious circumstances. I understand him to suggest that there is a risk that if costs were payable forthwith then there is a significant potential for the proceedings to be frustrated. I accept that. However, it must be recalled that Mr Wakim is no stranger to litigation. He filed these proceedings well after the events that were the subject of the statement of claim. His then solicitors consented to directions for the provision of particulars. The ensuing events have involved the defendant going to considerable cost and expense merely for the simple purpose of seeking to give effect to an order for particulars that the plaintiff has consented to. I do not think that in those circumstances there is any other proper course than to order that the costs of the notice of motion be payable forthwith.
Accordingly, I order that the defendant's notice of motion filed 7 February 2012 be dismissed, the plaintiff pay the defendant's costs of the notice of motion, and that such costs be payable forthwith.
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Decision last updated: 09 May 2013
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