Ng v Velik [2009] NSWSC 1256

New South Wales Supreme Court

CITATION : Ng v Velik [2009] NSWSC 1256

HEARING DATE(S) : 6 November 2009

JUDGMENT DATE : 20 November 2009

JUDGMENT OF : Harrison J

DECISION : 1. Application refused. 2. Order the defendant to pay the plaintiff's costs of the application.

CATCHWORDS : DISCOVERY – plaintiff suing former solicitor alleging negligence and breach of fiduciary duty – whether solicitor acted without instructions from the plaintiff – where 11,000 pages of solicitor's files provided to the plaintiff before commencement of proceedings - application by defendant for order to limit scope of defendant's obligation to comply with UCPR 21.3 as documents already in plaintiff's possession – whether cost and inconvenience to defendant outweighs plaintiff's insistence that defendant conform to his obligation to give discovery with particular identification of each document in the normal course – order refused

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

CATEGORY : Procedural and other rulings

CASES CITED : Auspine Ltd v H S Lawrence & Sons Pty Ltd [2000] FCA 1405 Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No. 8) [2001] NSWIRComm 208

PARTIES : Ping Jin Ng (Plaintiff) Stephen Wayne Velik (Defendant)

FILE NUMBER(S) : SC 20093/2009

COUNSEL : G Doherty (Plaintiff)

SOLICITORS : Chalmers Legal Studio (Plaintiff) S V Law (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HARRISON J

20 November 2009

20093/2009 Ping Jin Ng v Stephen Wayne Velik

JUDGMENT 1 HIS HONOUR: The defendant seeks orders to limit or qualify the manner in which, and the extent to which, he ought to be required to give discovery to the plaintiff. That application arises in the circumstances described below. Background 2 The statement of claim in this matter is an unfortunate document. However, at least the following matters emerge, or can be assumed to flow, from it. The defendant is the plaintiff's former solicitor. The defendant provided legal services to the plaintiff with respect to a loan from the plaintiff, or from an entity controlled by him, to Felice Pulzato and Gesilla Pulzato. The loan was secured by a mortgage over their property in Box Hill North in Victoria. The Pulzatos were refinancing an existing mortgage over the property, which secured a loan from Wayne Stuart Jonas and Rosalind Wilson Jonas. The defendant prepared the new loan documentation and mortgage for the plaintiff and appears to have attended on settlement of the transaction when $243,649.50 was paid to discharge the Jonas' mortgage. 3 The Pulzatos subsequently alleged that they had not signed the mortgage given to the plaintiff, but apparently maintained that their signatures had been forged by a third party. In due course, on 18 October 2005, a solicitor for the Pulzatos wrote to the defendant to tell him of the allegation that the mortgage had been forged and that his clients had been defrauded. The plaintiff alleges that the defendant did not refer these allegations to him but proceeded instead on his own to take steps in the plaintiff's name to enforce the mortgage notwithstanding the allegations. In due course the Pulzatos challenged the defendant's ability to continue to act for the plaintiff having regard to the allegations of forgery and the defendant's particular involvement in the preparation of the mortgage under challenge. The plaintiff alleges that the defendant continued to act without his knowledge or consent and without his instructions and that he caused costs to be incurred by the Pulzatos in an unsuccessful application by the defendant in the Victorian Supreme Court. The plaintiff became liable for these costs. The defendant allegedly also billed the plaintiff for legal services he neither requested nor authorised. The plaintiff disputes his liability to pay any of these costs and seeks to recover damages in respect of them from the defendant. 4 These proceedings were commenced by statement of claim filed on 9 March 2009. The defendant had previously passed the file that he maintained, when allegedly acting for the plaintiff, to the plaintiff's solicitors in August 2008. There is no dispute that the file is voluminous, consisting of some 35 A4 size ring binders that contain something in the order of 11,000 pages. The defendant contends in these circumstances that he should not be required formally to discover any documents forming part of, or presumably falling within, classes of documents that the parties have agreed upon, which documents make up part of the files maintained by the defendant for the plaintiff in relation to the mortgage advance and the proceedings in the Victorian Supreme Court, because they have already been provided. The defendant relies upon the single ground for wishing to adopt this course, set out in par 1(c) of his letter to the plaintiff's solicitors dated 17 August 2009, which he described as a desire "to avoid unnecessary discovery of documents already provided [by him] to the plaintiff's solicitors with [his] said file for the plaintiff, in turn, reducing both parties [sic] discovery related costs". Consideration 5 Orders for discovery were made by consent on 14 September 2009 in the following relevant terms: "The Court directs that: