Supreme Court New South Wales Medium Neutral Citation: Reid v Wright [2014] NSWSC 795 Hearing dates: 12 June 2014 Decision date: 17 June 2014 Before: Harrison J Decision: Direct the parties to bring in short minutes of order to reflect these reasons Catchwords: PARTICULARS - request for further and better particulars of statement of claim - whether proper requests or matters for evidence Legislation Cited: Family Law Act 1975 Category: Procedural and other rulings Parties: Christine Reid (Plaintiff) Diane Wright t/a D M Wright and Associates Solicitors (Defendant) Representation: Counsel: O Jones (Plaintiff) B Phillips (Defendant) Solicitors: Greg Walsh & Co Solicitors (Plaintiff) DLA Piper (Defendant) File Number(s): 2013/00234613 Publication restriction: Nil Judgment 1HIS HONOUR: By statement of claim filed on 2 August 2013, Christine Reid sues her former solicitor Ms Wright for negligence. Ms Reid alleges that Ms Wright breached the terms of her retainer and was negligent in the conduct of her application for a property settlement involving her former husband. Ms Reid alleges that she instructed Ms Wright to take all proper steps to ensure that she was adequately advised in order to protect her interests under the Family Law Act 1975 but that she failed in certain respects to do so. 2By letter dated 24 December 2013, Ms Wright's solicitors sought further and better particulars of the claim. A reply was provided by letter dated 6 March 2014. Ms Wright's solicitors were not satisfied in all respects with the reply and wrote again on 2 April 2014 saying so. Ms Reid's solicitors responded on 12 April 2014 contending that the responses provided on 6 March 2014 were "sufficient to enable your client to know the particulars of the claim." 3By notice of motion filed on 23 April 2014, Ms Wright sought orders compelling Ms Reid to provide a "full and complete response" to the 2 April 2014 letter within 14 days. By the time the matter came before me, the issues have been significantly narrowed. Those that remain are dealt with in what follows. 4Paragraph 9 of the statement of claim is in these terms: "9. Such negligence on the part of the defendant consisted in the defendant failing to institute proceedings for orders under s 79 Family Law Act and to otherwise advise the plaintiff of the importance of instituting proceedings seeking appropriate relief under the Family Law Act as quickly as possible." 5With respect to that paragraph, Ms Wright's solicitors asked what advice it was alleged she had provided to Ms Reid in relation to instituting proceedings under s 79 of the Act, and to specify what advice it was alleged should have been provided. Ms Reid's response was relevantly as follows: "13. The defendant indicated that the best way of resolving the matter was by way of settlement negotiations. The defendant made repeated representations to the plaintiff that it was '...far better to settle the matter by negotiation than to go to Court...'; '...It will take you three years to get to the Family Court...'; and '...it's too expensive...'. No advice to institute proceedings in the Family Court was forthcoming until 12 September 2010 (a copy of which is attached). ... 17. To commence proceedings in the Family Court of Australia; to advise the plaintiff to exercise her rights as Director of Dorgal Holdings Pty Ltd and Fundola Pty Ltd; to contact the Commonwealth Bank and to account for Dorgal Holdings Pty Ltd and Fundola Pty Ltd to obtain details of borrowings and the conduct of business operated by the husband; to ensure the obligations of the financial disclosure by the husband in accordance with the provisions of the Family Law Act; to advise the wife to contact the Commonwealth Bank so as to be advised of the loans with bank and any increased liability; to advise the plaintiff to bring an interim application restraining the husband from further borrowings; and to retain a forensic accountant." 6That response provoked the following further requests: "13. Your answer refers to an attached advice dated 12 September 2010, however no document was attached. Please provide the attachment. 15. Your response sets our particulars that are irrelevant to the question. The question asks what instructions the plaintiff gave in response to the advice the defendant allegedly provided about instituting proceedings. To quote your particulars as to that advice, the defendant: '... made repeated representations to the Plaintiff that it was "...far better to settle the matter by negotiation than to go to Court ...; "... it will take you three years to go to Family Court..." and "...it's too expensive..."' That advice requires a response from the plaintiff that must involve instructions to either refrain from, or to proceed with instituting proceedings. In the circumstances, please set out: 15.1 the instructions the plaintiff provided the defendant in response to the advice allegedly provided, for example, whether the plaintiff instructed the defendant to refrain from instituting proceedings or to proceed with instituting proceedings; and 15.2 when such instructions were provided. 16. This question is relevant in establishing the particulars of negligence against our client. Your response sets out allegations of advice in such broad terms that our client is unable to respond to the case made against her. To that end, please clarify: 16.1 It is alleged that the defendant's advice to the plaintiff that it was 'far better to settle the matter by negotiation than to go to Court...'; '...it will take you three years to go to Family Court...' and 'it's too expensive' was negligent? If so, in what way is it alleged to be negligent? 16.2 Your response that the defendant failed to advise the plaintiff to commence proceedings is inconsistent with your answer to question 13 in your letter dated 6 March 2014, where you acknowledge that advice was provided on 12 September 2010. Is it alleged the defendant failed to advise the plaintiff to commence proceedings at all, or that she failed to do so within a specific time? If the latter, please specify the time within which that advice should have been provided. 16.3 What advice should the defendant have provided to the plaintiff regarding exercising her rights as director of Dorgal Holdings Pty Limited and Fundola Pty Limited? 16.4 Is it alleged the defendant did not advise the plaintiff at all in relation to matters involving borrowings with the Commonwealth Bank by Dorgal Holdings Pty Limited and Fundola Pty Limited? 16.5 On what basis is it alleged the defendant should have advised the plaintiff to retain a forensic accountant? 17. At what time is it alleged to be evident that there was no possibility of a quick resolution?" 7Not all of that response was entirely accurate. The original request did not ask for particulars of instructions alleged to have been given by Ms Reid to Ms Wright. As indicated above, it asked what advice it was alleged Ms Wright had provided to Ms Reid in relation to instituting proceedings under s 79 of the Act, and asked Ms Reid to specify what advice it was alleged should have been provided. 8Be that as it may, the questions referred to in paragraph 6 above are proper requests for particulars. Ms Wright is entitled to have answers to them. Ms Reid should provide them. 9Paragraph 11(iii) of the statement of claim contains a particular of negligence in the following terms: "iii. Failure to advise the plaintiff to exercise her rights as a director of Dorgal Holdings Pty Ltd and Fundola Pty Ltd." 10Ms Wright sought the following particulars of that allegation: "What advice does the plaintiff allege the defendant should have provided regarding the plaintiff's exercise of her rights as a director of Dorgal Holdings Pty Ltd and Fundola Pty Ltd?" 11Ms Reid responded by saying that the request was a matter for evidence. It is not. The request is well made and should be answered. 12Paragraph 12 of the statement of claim alleges that Ms Reid suffered loss and damage by reason of Ms Wright's conduct. Particular i. is in these terms: "i. The plaintiff lost the opportunity of the prompt institution of proceedings under s 79 Family Law Act which would have meant a final hearing of the matter would have occurred in late 2009 to mid 2010 being at a time when the properties under the control of the parties were worth substantially more." 13Ms Reid sought the following details concerning that particular of loss and damage: "40. What, is it alleged, was the value of the properties under the control of the parties during the period late 2009 to mid 2010? 41. Particular (i) states the final hearing would have occurred in late 2009 to mid 2010 'when properties under the control of the parties were worth substantially more'; more than what? 42. What, is it alleged, would have been the outcome of the proceedings under the Family Law Act 1975 had they been instituted at the time the plaintiff alleges they should have been instituted?" 14Ms Reid responded to these requests by indicating that they are matters for evidence. They are not. They are proper requests for particulars. They go directly to the calculation and quantification of the loss and damage, which Ms Reid alleges that she has suffered. Ms Wright is entitled to the information that they seek to elicit. They should be answered. 15The parties should if thought necessary bring in short minutes to reflect the orders I have foreshadowed. I propose to order that the costs of the motion should be the defendant's costs in the proceedings. If either party wishes to contend otherwise I will hear argument on the question of costs when convenient. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2014