FEV Mono Constructions Pty Ltd v Beattie [2021] NSWCA 18

FEV Mono Constructions Pty Ltd v Beattie [2021] NSWCA 18

Leave to appeal was refused because the proposed appeal concerned practice and procedure, raised no question of principle or public importance, and disclosed no arguable error. The primary judge was justified in removing the second to fourth applicants because no cause of action was pleaded or identified for them, and in striking out the whole amended statement of claim with leave for Mono Constructions to replead because most negligence particulars were covered by advocate's immunity and the remaining possible allegations required further pleading. The applicants were heard on the relevant motions, the bias and procedural unfairness complaints were unsupported, and the filed notice of...

Jurisdiction
Australia
Judgment Date
23 February 2021
Procedural Posture
Application for Leave to Appeal From Interlocutory Orders in Professional Negligence Proceedings; Motion to Dismiss Notice of Appeal as Incompetent / Court of Appeal Determination of Summons Seeking Leave to Appeal, Extension of Time, and Respondents' Motion to Dismiss Appeal as Incompetent
Outcome
Extension of time granted; summons seeking leave to appeal dismissed; notice of appeal dismissed as incompetent; applicants/appellants ordered to pay respondents' costs.
Legal Topics
['removal of Parties' 'strike Out of Pleadings' "advocate's Immunity" 'corporate Representation' 'procedural Fairness' 'leave to Appeal' 'incompetent Appeal']
['civil Procedure' 'professional Negligence' 'legal Profession'] ['removal of Parties' 'strike Out of Pleadings' "advocate's Immunity" 'corporate Representation' 'procedural Fairness' 'leave to Appeal' 'incompetent Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Interlocutory Orders in Professional Negligence Proceedings; Motion to Dismiss Notice of Appeal as Incompetent / Court of Appeal Determination of Summons Seeking Leave to Appeal, Extension of Time, and Respondents' Motion to Dismiss Appeal as Incompetent

Legal Issues

  1. 1 ['Whether the second to fourth applicants were properly removed as parties where no cause of action was pleaded or articulated on their behalf.' "Whether the amended statement of claim was properly struck out where most pleaded allegations of negligence were said to be covered by advocate's immunity and remaining allegations required further facts." "Whether the primary judge denied procedural fairness by dealing with advocate's immunity and party removal on the pleadings rather than allowing the claims to proceed to final hearing." 'Whether the primary judge failed to act impartially or made prejudicial comments.' "Whether the primary judge erred in dismissing the applicants' motion for further and better particulars and production of the client file." 'Whether the notice of appeal filed without leave from interlocutory orders was incompetent.']

Ratio Decidendi

Leave to appeal was refused because the proposed appeal concerned practice and procedure, raised no question of principle or public importance, and disclosed no arguable error. The primary judge was justified in removing the second to fourth applicants because no cause of action was pleaded or identified for them, and in striking out the whole amended statement of claim with leave for Mono Constructions to replead because most negligence particulars were covered by advocate's immunity and the remaining possible allegations required further pleading. The applicants were heard on the relevant motions, the bias and procedural unfairness complaints were unsupported, and the filed notice of...

Court Disposition

Extension of time granted; summons seeking leave to appeal dismissed; notice of appeal dismissed as incompetent; applicants/appellants ordered to pay respondents' costs.

Orders

  • ['In proceedings 2020/00269032: Dispense with the requirement in Uniform Civil Procedure Rules, r 7.1(3) that the first and second applicants be represented by a solicitor with respect to the prosecution of the summons seeking leave to appeal.' 'In proceedings 2020/00269032: Extend the time for the applicants to...