Kearney v Amirbeaggi [2020] NSWSC 1035

Kearney v Amirbeaggi [2020] NSWSC 1035

The defendants did not establish that the plaintiff's amended statement of claim, taken at its highest, was so obviously untenable or groundless that there was a high degree of certainty it would fail, nor that the proceedings as a whole were an abuse of process. The plaintiff's claims concerning failures to seek timely relief, to pass on the Williams' Calderbank offer, to pursue early resolution including valuation, and to obtain instructions about the 1 July 2013 consent orders were not shown to be incapable of success. The Calderbank offer had not been determined in the earlier proceedings in a way that made the plaintiff's reliance on it an abuse of process. Although some discrete...

Jurisdiction
Australia
Judgment Date
06 August 2020
Procedural Posture
Civil Procedure Application for Summary Dismissal or Strike Out in Proceedings by a Former Client Against Solicitors / Notice of Motion by the Defendants Filed on 20 June 2019 Seeking Dismissal Under R 13.4 of the Uniform Civil Procedure Rules 2005 (nsw), or Alternatively Strike Out of the Amended Statement of Claim Under R 14.28
Outcome
The defendants' notice of motion was dismissed, with no order as to costs, and remaining production issues were referred to the Registrar's list.
Legal Topics
['summary Dismissal' 'strike Out of Pleadings' 'abuse of Process' 'attempted Re Litigation of Earlier Findings' "solicitors' Retainer and Duties" 'costs Disclosure' 'calderbank Offer' 'oppression Proceedings']
['civil Procedure' 'professional Negligence' 'legal Profession' 'corporations'] ['summary Dismissal' 'strike Out of Pleadings' 'abuse of Process' 'attempted Re Litigation of Earlier Findings' "solicitors' Retainer and Duties" 'costs Disclosure' 'calderbank Offer' 'oppression Proceedings']

Case Brief

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Procedural Posture

Civil Procedure Application for Summary Dismissal or Strike Out in Proceedings by a Former Client Against Solicitors / Notice of Motion by the Defendants Filed on 20 June 2019 Seeking Dismissal Under R 13.4 of the Uniform Civil Procedure Rules 2005 (nsw), or Alternatively Strike Out of the Amended Statement of Claim Under R 14.28

Legal Issues

  1. 1 ["Whether the plaintiff's proceedings should be dismissed as frivolous or vexatious, as disclosing no reasonable cause of action, or as an abuse of process under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether the amended statement of claim should be struck out under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).' "Whether the plaintiff's claims sought impermissibly to re-litigate issues decided in earlier Optimisation proceedings before Brereton J." "Whether alleged failures by the defendants, including failure to seek urgent relief, failure to pass on the Williams' Calderbank offer, failure to seek appointment of an independent valuer, and alleged failures concerning consent orders and interlocutory relief, were so untenable that the claims should not proceed." 'Whether remaining issues concerning production of documents by the second defendant should be referred back to the Registrar.']

Ratio Decidendi

The defendants did not establish that the plaintiff's amended statement of claim, taken at its highest, was so obviously untenable or groundless that there was a high degree of certainty it would fail, nor that the proceedings as a whole were an abuse of process. The plaintiff's claims concerning failures to seek timely relief, to pass on the Williams' Calderbank offer, to pursue early resolution including valuation, and to obtain instructions about the 1 July 2013 consent orders were not shown to be incapable of success. The Calderbank offer had not been determined in the earlier proceedings in a way that made the plaintiff's reliance on it an abuse of process. Although some discrete...

Court Disposition

The defendants' notice of motion was dismissed, with no order as to costs, and remaining production issues were referred to the Registrar's list.

Orders

  • ["The defendants' notice of motion filed on 20 June 2019 is dismissed." 'No order as to costs.' "Any remaining issues in respect of the production of documents by the second defendant to the plaintiff be referred to the Registrar's list on 17 August 2020 for directions."]