Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer [2016] NSWSC 1252

Supreme Court New South Wales

Medium Neutral Citation: Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer [2016] NSWSC 1252 Hearing dates: 31 August 2016 Date of orders: 09 September 2016 Decision date: 09 September 2016 Jurisdiction: Common Law Before: Harrison J Decision: (1) Dismiss the defendant's motion for an order pursuant to UCPR 12.7. (2) Order that the costs of the motion should be the plaintiff's costs in the proceedings. (3) Note that the plaintiff's evidence is complete. (4) Appoint 15 September 2016 at 9.30am before me for directions, including but not limited to a timetable for the filing and service of evidence upon which the defendant proposes to rely. (5) Grant liberty to the parties otherwise to approach the List Manager forthwith for the appointment of a hearing date. (6) Grant liberty to apply to me on 48 hours' notice given to my Associate. Catchwords: PROFESSIONAL NEGLIGENCE – solicitor's negligence – delay by plaintiff – application to dismiss proceedings for want of due despatch – UCPR 12.7(1) – where proceedings commenced in 2012 – where plaintiff has taken limited steps to progress the litigation – competing prejudice – whether plaintiff's case viable – whether limitation defences fatal to plaintiff's claim – whether cause of action otherwise vulnerable – where no application for summary dismissal – where dictates of justice require early disposition – whether hearing on merits to be preferred Legislation Cited: Civil Procedure Act 2005 Family Provision Act 1982 Limitation Act 1969 Uniform Civil Procedure Rules 2005 Cases Cited: Bi v Mourad [2010] NSWCA 17 Borgese v Papasidero [2006] NSWSC 407 Hoser v Hartcher [1999] NSWSC 527 Templar v Watt [2014] NSWSC 937 Category: Procedural and other rulings Parties: Domenico Borgese (Plaintiff) Cater & Blumer Pty Ltd (Defendant) Representation: Counsel: C K Stewart (Plaintiff) T M Faulkner SC (Defendant)