Sutherland v GHR Accounting [2017] NSWSC 100

Supreme Court New South Wales

Medium Neutral Citation: Sutherland v GHR Accounting [2017] NSWSC 100 Hearing dates: 15 February 2017 Decision date: 15 February 2017 Jurisdiction: Common Law Before: Button J Decision: (1) The hearing of the notice of motion of the defendant is stood over part heard before me to 10AM on Friday 31 March 2017. (2) Any further materials upon which the plaintiff, Mr Sutherland, relies must be filed and served by Friday 24 March 2017 at 4PM, such filing being able to be undertaken by provision of documents to my Chambers. (3) Any new materials upon which the defendant relies must be filed and served no later than 4PM on Tuesday 28 March 2017, such filing being able to be undertaken in an identical way. (4) The plaintiff must pay the costs of the defendant of today. (5) As a matter of formality, the pending notice of motion of the plaintiff is stood over to 10AM Friday 31 March 2017. Catchwords: PROCEDURE – application for summary dismissal adjournment application of plaintiff – granted Cases Cited: Sutherland v GHR Accounting and Anor [2015] NSWSC 1946 Category: Procedural and other rulings Parties: Richard Craig Sutherland (Plaintiff) GHR Accounting (Defendant) Representation: Counsel: C J Peadon (Defendant)

Solicitors: Self-represented (Plaintiff) Colin Biggers & Paisley Lawyers (Defendant) File Number(s): 2015/236599 Publication restriction: Nil

EX TEMPORE Judgment Introduction 1. By way of a notice of motion filed as long ago as 31 May 2016, GHR Accounting (the defendant) seeks to have the proceedings brought by Mr Richard Sutherland (the plaintiff) come to an end; in the alternative, his latest effort at preparing a statement of claim (he is and has been for a very large proportion of these proceedings unrepresented) is impugned. 2. The matter came before me today for the hearing of the motion. The plaintiff applied for an adjournment, which was opposed by counsel for the defendant. I received oral submissions from each party about that threshold question, and retired briefly to consider its resolution. Background and submissions 1. Before recounting the competing submissions about the threshold question, I shall very briefly set out my understanding of the background, illuminated as it is by a detailed judgment of Hall J of 18 December 2015: Sutherland v GHR Accounting and Anor [2015] NSWSC 1946. Although no material was formally tendered before me on the adjournment application, I indicated to the parties that I had undertaken extensive reading of material provided to my Chambers by the parties before the hearing, and neither of them expressed discomfort with me taking into account what I had read informally. 2. The claim that the plaintiff is trying to make, in a nutshell, is that, as a result of allegedly negligent advice given by a firm of accountants to himself and to a company of which he was the controlling mind, the property portfolio of the company was destroyed, and his personal income derived from the company set at nought. Although the latest iteration of his claim arguably suffers from a number of significant defects, I think that his basic contention about that is tolerably clear. 3. The proceedings have been on foot for quite some time, and included a successful application by the creditor bank for summary dismissal of the claim against it. 4. As counsel for the defendant has pointed out, there are serious fundamental questions about the claim. 5. The first is that, bearing in mind that the real property in question was owned by the company, and its sale satisfied the debt of the company to the creditor bank, the plaintiff was not called upon as guarantor to make good any shortfall. In other words, there is a serious issue whether the plaintiff has suffered any compensable loss at all, bearing in mind the doctrine of reflective loss, and the distinction between natural and corporate persons. 6. Secondly, and relatedly, one may seriously question whether, even if the plaintiff could establish that the defendant proffered negligent advice, causation could be established within his claim. 7. Separately, counsel for the defendant has queried whether an adjournment would serve any purpose, bearing in mind that the plaintiff has already been referred once to the pro bono scheme maintained by the Bar Association, and had the benefit of advice from a barrister highly experienced in such matters. 8. Finally, counsel pointed out that the judgment of Hall J, delivered many months ago, made tolerably plain the problems that the plaintiff must address, in terms of resisting a further impugning of his pleadings and of the claim as a whole. 9. The position of the plaintiff before me was that he has now come to appreciate the legal distinction between the company that he controlled and himself. In order to overcome the basal criticism of his claim, he is trying to "revive" the company, or otherwise somehow have it joined in the proceedings. He seeks time to do that, and submits that it would be precipitous for me to hear the matter today without giving him a chance to do so. 10. Furthermore, despite his position being that he is in dire financial straits, he believes that there is some prospect of him getting some level of legal assistance in order to address the criticisms made of his claim by counsel for the defendant. Determination 1. Turning to my determination of this threshold question only, I respectfully think there is sound force in the submissions of counsel for the plaintiff. This matter must come to a resolution shortly, it having already been before this Court for many months; it already having been the subject of at least one detailed judicial analysis; and the motion having been filed literally months ago. 2. Having said that, in order to refuse the adjournment, I would need in a practical sense to be satisfied that any new resistance by the plaintiff to the proposition of the defendant that his claim is "doomed to failure" would itself be "doomed to failure". That is a very high state of satisfaction, that at this early stage, I do not possess. 3. Secondly, I think that, other things being equal, one should be slow to shut the door of the court potentially to an unrepresented litigant, who, I am prepared to accept, is making a bona fide effort to litigate a wrong that he believes has been done to him. 4. Thirdly, there was no dispute between the parties as I understand it that the plaintiff has suffered periods of unwellness, during which he was in no position to advance his litigation, or to reflect carefully on its prospects. 5. Fourthly, inevitably an adjournment will occasion further inconvenience, trouble, and, in all likelihood, expense to the defendant. Having said that, I believe that the ancillary orders that I have in mind will ameliorate that to some degree. 6. In short, seeking to balance the competing interests of the parties, I consider that this matter should be adjourned. However, there are a number of aspects of that which will be the subject of formal orders shortly. 7. First, there can be no question but that the plaintiff must pay the costs of the defendant of today; the plaintiff did not submit to the contrary. 8. Secondly, the matter must stay before me, so that all of the preliminary reading and research that I have undertaken is not thrown away and repeated by another judge, and also so that my understanding of the unfortunate forensic history does not go to waste. 9. Thirdly, the hearing of the motion must go over to a date that meets the convenience of counsel for the defendant. 10. Fourthly, a copy of the transcript of the proceedings of today, and of this judgment once revised, will be made available electronically by my Associate to both parties for their convenience in preparation for the final hearing of the motion on the next occasion. [FURTHER SUBMISSIONS RECEIVED] Orders 1. I make the following orders: 1. The hearing of the notice of motion of the defendant is stood over part heard before me to 10AM on Friday 31 March 2017. 2. Any further materials upon which the plaintiff, Mr Sutherland, relies must be filed and served by Friday 24 March 2017 at 4PM, such filing being able to be undertaken by provision of documents to my Chambers. 3. Any new materials upon which the defendant relies must be filed and served no later than 4PM on Tuesday 28 March 2017, such filing being able to be undertaken in an identical way. 4. The plaintiff must pay the costs of the defendant of today. [FURTHER SUBMISSIONS RECEIVED] 1. As a matter of formality, the pending notice of motion of the plaintiff is stood over to 10AM Friday 31 March 2017.