Neale v Mahony [2018] NSWSC 1046

Supreme Court New South Wales

Medium Neutral Citation: Neale v Mahony [2018] NSWSC 1046 Hearing dates: 27 June 2018 Date of orders: 13 July 2018 Decision date: 13 July 2018 Jurisdiction: Common Law Before: Davies J Decision: (1) Apart from the claim identified in paragraph 8(d) of the Statement of Claim, the claims pleaded in the Statement of Claim are dismissed pursuant to UCPR r 13.4;

(2) The whole of the pleading contained in the Statement of Claim is struck out pursuant to UCPR r 14.28;

(3) Grant leave to the plaintiff to re-plead the claim identified in paragraph 8(d) of the Statement of Claim;

(4) Any re-pleaded Amended Statement of Claim is to be served in draft on the solicitors for the defendant by 3 August 2018;

(5) Stand over the further hearing of the Notice of Motion to Friday 10 August, 2018 at 2.00pm;

(6) Costs reserved. Catchwords: CIVIL PROCEDURE – summary disposal – dismissal of proceedings – plaintiff alleged that solicitor negligently conducted the defence of previous proceedings arising from his default under a mortgage – extended estoppel – abuse of process – where findings made against plaintiff in previous proceedings - whether solicitor immune from suit – no reasonable cause of action disclosed in respect of claims involving earlier findings – UCPR r 13.4

CIVIL PROCEDURE – pleadings – form and content of pleading – defective particulars of negligence – all pleadings struck out – plaintiff granted leave to re-plead solicitor's failure to lodge a caveat on the land – UCPR r 14.28

ESTOPPEL – extended estoppel – finality – abuse of process - whether solicitor failed to plead the undervalue sale by receivers of land owned by plaintiff – whether failure to plead caused plaintiff's loss – issue fundamental to previous proceedings issue determined adversely to plaintiff in earlier proceedings Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 Cases Cited: Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 James Woodward Neale v Bank of Western Australia Ltd; Bank of Western Australia Ltd v James Woodward Neale [2014] NSWSC 315 Keefe v Marks (1989) 16 NSWLR 713 Neale v Commonwealth Bank of Australia Ltd trading as Bank of Western Australia [2015] NSWCA 272 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Reichel v Magrath (1889) 14 App Cas 665 Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142 State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423 Texts Cited: Nil Category: Procedural and other rulings Parties: James Woodward Neale (Plaintiff) John Francis Mahony (Defendant) Representation: Counsel: In person (Plaintiff) A Maroya (Defendant)