Victorian X-Ray Group Pty Ltd v Malouf t/a Malouf Solicitors (No 1) [2024] NSWSC 886

Supreme Court New South Wales

Medium Neutral Citation: Victorian X-Ray Group Pty Ltd v Malouf t/a Malouf Solicitors (No 1) [2024] NSWSC 886 Hearing dates: 28 November 2023 Date of orders: 28 November 2023 Decision date: 28 November 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: See [14]-[15] Catchwords: CIVIL PROCEDURE – Pleadings – Inconsistency with previous pleadings – dispute between the parties as to an amended statement of issues – whether the amended statement of issues accurately reflects the plaintiffs' pleaded case Category: Procedural rulings Parties: Victorian X-Ray Group (Dandenong) Pty Ltd (First plaintiff) Victorian X-Ray Group (Boronia) Pty Ltd (Second plaintiff) Bevyn Thomas White (Third plaintiff) Anthony Malouf trading as Malouf Solicitors (Defendant) Representation: Counsel: M Luitingh (Plaintiffs) A Avery-Williams with P Boyle (Defendant)

Solicitors: Jane Button & Associates Pty Ltd (Plaintiffs) Sparke Helmore Lawyers (Defendant) File Number(s): 2021/00139605 Publication restriction: None

EX TEMPORE JUDGMENT (REVISED) 1. On the morning of the second day of the hearing, Ms Avery‑Williams on behalf of the defendant handed up a proposed amended statement of issues which, on the defendant's case, was intended to reflect the pleadings, the particulars, the plaintiffs' opening, and some discussion between counsel for the plaintiffs and myself yesterday morning about whether the existing statement of issues accurately set out the real issues. 2. I was informed that the plaintiffs did not agree to the proposed amendment of the statement of issues because it sought to confine the time when the defendant ought to have known that the case was hopeless (and thus should have advised the plaintiffs of that). 3. Mr Luitingh submits that his case is not so confined to the particular times identified in the statement of issues. He refers to the Statement of Claim, for example paragraph 25E and other paragraphs relating to the other proceedings, which raise breach as being "advising VXG Dandenong and Bevyn White to defend and to continue (throughout the course of the proceedings) defending the Dandenong proceedings...". He submits that that paragraph leaves open a case that the defendant had an ongoing and continuing duty to advise the plaintiff that the case was hopeless and doomed to fail at times, including subsequent to the filing of the defences. 4. Mr Luitingh submits that even if, contrary to his primary position, the defendant was not in receipt of sufficient information to have been in a position to advise that the case was hopeless prior to the filing of the defence the pleading leaves open the possibility of a fall‑back position, being the defendant becoming aware at some time after the filing of the defence that the case was hopeless and failing to advise the plaintiff of this. 5. As such, the plaintiff does not agree to the amended statement of issues in the sense that the plaintiff does not agree to confining the issues to the dates set out, being prior to the filing of the defences. 6. Ms Avery‑Williams submits that the case that the defendant has come to meet is that set out in the particulars provided by the solicitors for the plaintiffs by letter dated 30 June 2022, which I marked yesterday as MFI 2. 7. Ms Avery‑Williams says that following receipt of the statement of claim, the solicitors for the defendant sought particulars and the solicitors for the plaintiff provided particulars by a letter dated 30 June 2022. As identified in that letter, the plaintiff specifies the dates on which the plaintiff is relying for the purposes of these proceedings. All of the dates specified in the letter of particulars are before the filing of the relevant defence or filing of the relevant cross‑claims or filing of the appeal proceeding. There is nothing uncertain or unclear about the particulars provided. 8. As it happens, the letter dated 30 June 2022 is consistent with what Mr Luitingh said yesterday. I did ask Mr Luitingh to reflect on what he said yesterday just to make sure that there was no uncertainty in the case that he was running and that exchanges between him and I had not, in any way, resulted in a position being adopted by the plaintiffs that the plaintiffs did not wish to adopt. 9. The plaintiffs' case remains that the defendant was in receipt of sufficient information prior to the filing of the defences such as to be in a position to inform them that the case was hopeless and that the defences should not be pursued prior to their filing. Mr Luitingh confirmed that. However, he says that the plaintiff would like to maintain a case that, If, contrary to the primary position findings were made that things changed in terms of the defendant's knowledge at some stage after the filing of the defence, then the plaintiff could still succeed in recovering costs from any particular date that I might find in respect of the change. 10. I understand that might have been the intent of the paragraphs in the statement of claim to which I have just referred, which mention, "to continue throughout the course of the proceedings." 11. However, that is not what was said in the particulars. It was not what was said by Mr Luitingh yesterday. Ms Avery‑Williams assures me that the case that the defendant has come to meet is the case set out in the particulars and that the cross‑examination she has embarked upon is based on that case and, I assume, that case being consistent with the opening. 12. In one sense this is a semantic argument because the plaintiffs are plainly running a case that the defendant was well aware of everything he needed to know to advise that the case was hopeless prior to the filing of the defence such that it may not make any difference on the plaintiffs' case. It may be difficult to see how the plaintiffs could run a fall‑back case bearing in mind the content of the outline of submissions provided by Mr Luitingh and the evidence on which the plaintiff tends to rely. Be that as it may, Mr Luitingh has suggested today that the plaintiffs' case should not be so confined. 13. In my view, it is so confined. It is confined by the particulars. The particulars are quite plain. They do not, in any way, suggest that should the plaintiff not succeed in establishing that Mr Malouf was aware of sufficient matters to advise the case was hopeless prior to the filing of the defences, the plaintiff would run some alternative case, that is, for example, that when Mr Malouf received Mr Damen's evidence or when Mr White finalised his affidavit, that at that point Mr Malouf should have realised the case was hopeless. There is nothing in the particulars and, frankly, nothing said by Mr Luitingh yesterday morning, which would have indicated to the defendant that the plaintiff was intending to run such a case. 14. In those circumstances I reject Mr Luitingh's suggestion today that the plaintiff wishes to, as it were, leave open the possibility of an alternative case. The case is as is pleaded and particularised and opened by Mr Luitingh. The negligence of the defendant is, as asserted by the plaintiffs, in failing to advise the plaintiffs prior to the filing of the defences, prior to the filing of the cross‑claims and prior to the lodging of the appeal proceedings, that such proceedings were hopeless and doomed to fail, that is, put simply, that the plaintiffs were going to lose and shouldn't be attempting to defend or appeal or pursue cross‑claims. 15. I do not permit the plaintiffs to now run some alternative case that at some other time, like a year later or the day before the hearing or whatever time might arise, Mr Malouf should have then realised that the case was doomed to fail. When I say then, I mean for the first time realised the case was doomed to fail.