Neale v Mahony [2018] NSWSC 1046

Neale v Mahony [2018] NSWSC 1046

Claims relating to solicitor's failure to plead undervalue and other previously litigated matters are an abuse of process and/or barred by advocate's immunity; only claim relating to failure to lodge caveats may proceed, subject to proper pleading.

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 July 2018
Procedural Posture
Civil / Interlocutory (strike Out and Summary Dismissal)
Outcome
Apart from the caveat claim, all claims dismissed; leave granted to replead caveat claim; orders as per judgment.
Legal Topics
['summary Disposal' 'dismissal of Proceedings' "solicitor's Negligence" "advocate's Immunity" 'estoppel' 'abuse of Process' 'strike Out of Pleading' 'failure to Plead Caveat']
['civil Procedure'] ['summary Disposal' 'dismissal of Proceedings' "solicitor's Negligence" "advocate's Immunity" 'estoppel' 'abuse of Process' 'strike Out of Pleading' 'failure to Plead Caveat']

Source-derived case record

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Procedural Posture

Civil / Interlocutory (strike Out and Summary Dismissal)

Legal Issues

  1. 1 ['Whether claim for negligence in failing to plead undervalue sale is abuse of process' "Whether advocate's immunity applies to solicitor's conduct in pleadings" 'Whether claims relating to earlier findings may be litigated again' 'Whether no reasonable cause of action is disclosed for other claims' 'Whether failure to lodge caveats may provide a proper cause of action']

Ratio Decidendi

Claims relating to solicitor's failure to plead undervalue and other previously litigated matters are an abuse of process and/or barred by advocate's immunity; only claim relating to failure to lodge caveats may proceed, subject to proper pleading.

Court Disposition

Apart from the caveat claim, all claims dismissed; leave granted to replead caveat claim; orders as per judgment.

Orders

  • ['Apart from the claim identified in paragraph 8(d) of the Statement of Claim, the claims pleaded in the Statement of Claim are dismissed pursuant to UCPR r 13.4.' 'The whole of the pleading contained in the Statement of Claim is struck out pursuant to UCPR r 14.28.' 'Grant leave to the plaintiff to re-plead the...