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[2020] NSWSC 1361

Michael v Stewart t/as Stewart & Associates Solicitors and Barristers

The Court made the following orders: (1) Order pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) that the proceedings brought by the plaintiff against the defendant in the District Court of New South Wales, being proceeding number 2019/45423, be transferred to the Supreme Court of New South Wales. (2) The costs of the Summons, filed by the plaintiff on 29 July 2020 in these proceedings, be reserved.

Catchwords

CIVIL PROCEDURE – transfer of proceedings from District Court to Supreme Court – orders

Cases cited

  • Australian Timber Supplies Pty Ltd v Agia[2014] NSWSC 1308
  • Sanderson Motors Pty Ltd v Kirby[2000] NSWSC 924

Legislation cited

  • Civil Procedure Act 2005 (NSW)

Judgment

  1. [1]

    By summons filed on 29 July 2020, Jason Michael (“the plaintiff”) seeks an order pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) (“the Act”) that proceedings 2019/45423 in the District Court be transferred to this Court.

  2. [2]

    At the hearing of the matter on 30 September 2020, the defendant, Andrew Stewart t/as Stewart & Associates Solicitors and Barristers, by his solicitor, did not oppose the application although sought to clarify various factual matters and was heard as to costs.

  3. [3]

    The Court made the following orders:

    1. (1)

      Order pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) that the proceedings brought by the plaintiff against the defendant in the District Court of New South Wales, being proceeding number 2019/45423, be transferred to the Supreme Court of New South Wales.

    2. (2)

      The costs of the Summons, filed by the plaintiff on 29 July 2020 in these proceedings, be reserved.

  4. [4]

    These are the Court’s reasons for decision.

  5. [5]

    The present application is supported by an affidavit sworn on 29 July 2020 by the plaintiff's solicitor, Mr Patakas. His evidence, in summary, is to the following effect:

  6. [6]

    Mrs Mendelsohn denied executing the Loan Agreement. She further denied granting a charge to the plaintiff to secure the Loan over the Double Bay Property, albeit without particularising the basis of that denial. Because of her principal defence, the plaintiff has sued the person who purported to witness her signature on the Loan Agreement, Mr Dezarnaulds.

  7. [7]

    In the Stewart Proceedings, the plaintiff makes a claim against Mr Stewart including as follows:

  8. [8]

    Thus, the plaintiff alleged that (if Mrs Mendelsohn is correct in her denial of his claims against her) Mr Stewart failed to:

    1. (1)

      prepare security for the loan that was efficacious; and

    2. (2)

      take steps to ensure that Mrs Mendelsohn had in fact executed the loan agreement.

  9. [9]

    In relation to the Stewart Proceedings, the Judicial Registrar of the District Court has expressed concern to the effect that there is potential for this Court to determine issues in the Mendelsohn Proceeding which are also issues in the Stewart Proceeding, which might in turn lead to a potential embarrassment to the court system if common issues are sought to be re-litigated.

  10. [10]

    Mr Stewart's solicitors have sought to have the Stewart Proceeding dismissed for want of prosecution. The plaintiff has contended otherwise. As Mr Patakas summarises the matter in par 35(d) of this affidavit:

  11. [11]

    The present application seeks only a transfer pursuant to s 140. The relevant principles for present purposes are incorporated in two decisions of this Court:

    1. (1)

      In Australian Timber Supplies Pty Ltd v Agia [2014] NSWSC 1308, Robb J said (at [2]):

    2. (2)

      In Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924, Bryson J said of the section's predecessor (at [41]):

  12. [12]

    The circumstances referred to in s 140(3) are not present in this case. There is no claim for damages for death or personal injury. Accordingly, the application is to be determined by reference to the discretion conferred by s 140(1).

  13. [13]

    It is not, and nor can it be, the vehicle for the determination of the question whether the Stewart Proceedings and the Mendelsohn Proceeding should be heard at the same time. Whether that so will be informed by the submissions of, inter alia, Ms Mendelsohn and Mr Dezarnaulds. They are not parties to this proceeding.

  14. [14]

    Nevertheless, as senior counsel for the plaintiff submitted, the Stewart Proceedings are derivative upon the facts which are pleaded in the Mendelsohn Proceedings and assume a particular outcome of these proceedings. If Ms Mendelsohn is correct in her defence no security was provided for the loan and, inter alia, she did not execute her signature on the loan agreement.

  15. [15]

    There is also a question as to whether the dispute is ripe for determination, given that in neither case is the evidence closed. The defendants in the Mendelsohn Proceeding have yet to serve their evidence. As importantly, the matters relied upon by Mrs Mendelsohn to deny the efficacy of the purported security have not been articulated (other than her claim that her signature was forged). Nonetheless, there is the potential for a common substratum of facts in the respective proceedings.

  16. [16]

    In these circumstances, I accept the submission by the plaintiff, it is appropriate this Court determine how the two cases should be managed. If the Court determines that they should be heard at the same time, then there is no issue that the Stewart Proceedings should be determined in this Court. In any event, the one Court ought to determine the matter with the benefit of submissions from all interested parties. This can only occur if the Stewart Proceedings are transferred pursuant to s 140.

  17. [17]

    Having regard to the submissions of the parties, it is appropriate that costs be reserved.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.