Supreme Court New South Wales

• Medium Neutral Citation: Constantinidis v Kehagiadis [2011] NSWSC 974
• Hearing dates: 28 July 2011
• Decision date: 02 September 2011
• Jurisdiction: Common Law
• Before: Davies J

Decision

(1) I dismiss the Plaintiffs' Notice of Motion filed 30 June 2011.

(2) Any further application to file a Statement of Claim or an amended Statement of Claim is confined to the claims contained in section (2) of this judgment.

(3) Any further application to amend the Statement of Claim is to be filed by no later than 4 October 2011. The Motion or any affidavit in support is to annex the proposed Statement of Claim. The Motion is to be returnable before me on 14 October 2011 at 2.00pm.

(4) If no such application is filed by 4 October 2011 the proceedings are dismissed with costs.

(5) The Plaintiffs' application for referral to the Registrar for pro bono assistance is refused.

(6) The Plaintiffs are to pay the costs of the Notice of Motion.

• Catchwords: PROCEDURE - pleading - leave to file Amended Statement of Claim - whether causes of action disclosed - whether pleading is embarrassing - whether Plaintiffs should be permitted to replead after strike out.
• Legislation Cited: Civil Liability Act 2002; Civil Procedure Act 2005; Fair Trading Act 1987; Legal Profession Act 2004; Limitation Act 1969; Real Property Act 1900; Revised Professional Conduct and Practice Rules 1995 (the Solicitors' Rules); Uniform Civil Procedure Rules; Victims Support and Rehabilitation Act 1996
• Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 83 ALJR 951; Cameron v Qantas Airways Ltd and Anor [2010] NSWSC 899; Cheney & Wilson v Duncan [2001] NSWCA 197; David Charles Bott v Trevor John Carter [2009] NSWSC 236; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Kelly v Mosman Municipal Council [2010] NSWCA 370; Logan v Baird [2011] NSWCA 19; McGuirk v The University of New South Wales [2009] NSWSC 1424; Walmsley v Cosentino [2001] NSWCA 403; Wilson v Rigg [2002] NSWCA 246
• Category: Procedural and other rulings
• Parties: George Constantinidis (First Plaintiff); Gemma Constantinidis (Second Plaintiff); Meropi Kehagiadis (Defendant)
• Representation: Self represented (Plaintiffs); M Dicker (Defendant); Self represented (Plaintiffs); Colin Biggers & Paisley (Defendant)
• File Number(s): 2009/297696

Judgment

1 On 16 June 2011 I struck out a Statement of Claim dated 1 July 2009 filed by the Plaintiffs against the Defendant who was their former solicitor. I did this pursuant to a Notice of Motion filed by the Defendant who sought not only to strike out the Statement of Claim but to dismiss the proceedings altogether.

2 When I gave judgment on that date I said this:

Because of the procedural irregularities that occurred by reason of the wrongful filing of Amended Statements of Claim, the issue of the adequacy of those documents has never properly been decided by a judicial officer of the Court. It seems to me that the Plaintiffs ought to be given one last opportunity to present to the Court on an application for leave to file an Amended Statement of Claim, a pleading to see if it complies with the Court Rules.

3 The Plaintiffs have now moved by a Motion filed on 30 June 2011 for leave to file an Amended Statement of Claim in the form said to be annexed to the Notice of Motion. It was in fact not so annexed but was provided separately.

4 The Defendant opposes leave being given to the Plaintiffs for reasons detailed at length in written submissions provided on the hearing of the Notice of Motion. Those reasons can be summarised by saying that in some cases no cause of action is shown on the proposed pleading, and in other cases that the matter is so improperly pleaded and is embarrassing as not to comply with the Rules and proper pleading practice.

5 It appears that the Defendant acted for the Plaintiffs in a number of separate matters in 2005 and 2006. It appears that the Defendant was first retained by the Plaintiffs on 5 October 2005. A Mr Vasso Tsolakis had hitherto acted for the Plaintiffs. On 15 September 2006 the Plaintiffs allege that the Defendant terminated her retainer by the Plaintiffs, although at that time some matters remained incomplete.

6 The Defendant accepts that the principles in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 must be applied in relation to an allegation that the pleading does not plead an arguable case.

7 In relation to pleading generally Schmidt J said in Cameron v Qantas Airways Ltd and Anor [2010] NSWSC 899:

[[17] Those Rules are intended to ensure that both the defendants and the Court are given a clear indication, from the outset, of the claims which are made by Ms Cameron; the factual basis upon which those claims are advanced; and the orders which are sought. The parties' pleadings have important functions to perform in relation to the conduct and eventual hearing of the case, particularly in relation to the identification of the legal and factual issues lying between the parties and the evidence which is relevant to their determination.

[18] Ms Cameron's current pleadings are embarrassing, in the sense that is discussed in the authorities, namely that they are unintelligible, imprecise and ambiguous, depriving the defendants of a proper opportunity of understanding what actual allegations comprise the substance of her claims. They do not provide material facts to support the serious allegations made (see Kirby v Sanderson Motors Pty Limited [2001] NSWCA 44; (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) at 142-143). In Gunns Limited v Marr [2005] VSC 251, Bongiorno J observed that:

"[57] It is not the function of the Court to draw or settle a

party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent, and intelligible statement of its case. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r.23.02. Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent and detailed form."

8 Similarly, Johnson J in McGuirk v The University of New South Wales [2009] NSWSC 1424 said at [21] - [29]:

[21] The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286, 296, 302-3. The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] 148 CLR 658 at 664; Banque Commerciale at 296.

[22] In Perpetual Trustees Victoria Limited v Dunlop [2009] VSC 331, Forrest J observed at [24] that the rules of pleading are "the servants of the interests of justice", with those interests demanding that a party have every opportunity to plead out an arguable case against other parties, but that those other parties have, at an early point in the proceedings, the opportunity to be properly appraised of the case against them.

[23] Pleadings provide the structure upon which interlocutory processes, such as discovery, are governed and they constitute the record of the matters which the Court has resolved and become relevant if, in any subsequent proceedings, any party claims issue estoppel or res judicata: Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 at [100]-[103].

[24] Proper pleading is of fundamental importance in assisting Courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s.56 Civil Procedure Act 2005.

[25] Where application is made by a party for leave to amend pleadings, the Court should have regard to considerations of case management, cost and delay: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [111]-[112]; (2009) 83 ALJR 951. Of course, the present application is made by the Plaintiff at an early stage in the proceedings. A hearing is not imminent. Nevertheless, the orderly progress of litigation requires the Court to apply the letter and spirit of the Civil Procedure Act 2005, in accordance with contemporary principles identified in Aon , in determining an application such as this.

[26] The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives therefore flows most clearly from the statutory duty of a party and the duty in civil proceedings to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited & Ors [2008] NSWCA 243 at 161. The need for clarity, precision and openness as part of this co-operation has been emphasised in the context of ambush or surprise: White v Overland [2001] FCA 1333 at [4].

[27] For a Statement of Claim to comply with the rules of Court, a party should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: Rule 14.7 UCPR. In doing so, the pleadings should be as brief as the nature of the case admits: Rule 14.8 UCPR.

[28] In Kirby v Sanderson Motors Pty Limited (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) said at 142-143 [20]-[21], with respect to the requirement for a pleading to state material facts:

"It might appear that these rules [the Supreme Court Rules] do not require that causes of action be stated in pleadings; the requirement is to have a statement of material facts, and indeed to have only such a statement. However, in my opinion - 'Material' means material to the claim, that is, to the cause or causes of action which are relied on. (2) The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract. (3) The general requirement to avoid surprise means that material facts must be stated in such a way that the defendant can understand the materiality of the facts, that is, how they are material to a cause of action.

Accordingly, even on the basis of these rules which are common to the District Court and the Supreme Court, I do not take cases such as Konskier as establishing that there is a danger of surprise, which arises particularly where there is lack of precision and clarity in the pleading, it may well be appropriate to require a Plaintiff, either in a statement of claim or in particulars, to explicitly relate the facts it pleads to specific causes of action."

9 In relation to whether a pleading is embarrassing within the meaning of such provisions as Rule 14.28 UCPR, Hislop J said in Bott v Carter [2009] NSWSC 236 at [18]:

A pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence: Gunns Limited v Marr [2005] VSC 251 at [14] - [15]. A pleading may also be embarrassing if it contains inconsistent, confusing or irrelevant allegations - Shelton v National Roads and Motorist's Association Limited (2004) 51 ACSR 278 at [18].

10 Johnson J also discussed the concept of embarrassment in McGuirk at [30] - [35]:

[30] A pleading is embarrassing where it is "unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him": Meckiff v Simpson [1968] VR 62 at 70; Gunns Limited v Marr at [14]-[15].

[31] In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 at [18], Tamberlin J explained the concept of "embarrassment" with respect to pleadings:

"Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434."

[32] A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at 5-6).

[33] Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 at 417-418. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109 at 112-114.

[34] Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Limited [1960] VR 473 at 476; H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181 at 186.

[35] It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Limited (1974) 131 CLR 69 at 72, 87-88, 97-98; Gunns Limited v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926 at [55].

11 One matter common to a number of the matters pleaded in the Amended Statement of Claim is that the Defendant owed a duty of care pursuant to, or by reasons of, the Revised Professional Conduct and Practice Rules 1995 (the Solicitors' Rules).

12 In relation to similar but not identical pleadings Hislop J in Bott v Carter said:

[28] The plaintiff, in the relief claimed in paragraphs 2, 3 and 4 of the 4th amended statement of claim requested that the court find the defendants' actions constituted unsatisfactory conduct and professional misconduct and that they be punished accordingly. A similar request was made in paragraph 32 as against the first defendant and paragraph 17 as against the second defendant.

[29] The defendants submitted that the claims for relief sought in paragraphs 2, 3 and 4 and paragraphs 32 (as against the first defendant) and 17 (as against the second defendant) should be struck out as embarrassing and disclosing no reasonable cause of action. Alternatively it was submitted such claims should be stayed pursuant to s 67 CPA on the grounds that a single justice of the Supreme Court should decline to exercise any inherent jurisdiction when there is a suitable alternative venue to deal with the complaint and it would be unduly burdensome to the court and unfair to the defendants to have issues of misconduct and civil liability dealt with in the one case.

[30] The Legal Profession Act 2004, chapter 4 (ss 494 - 609), provides a detailed regime governing complaints about, and discipline of, legal practitioners. In short it provides that written complaints may be made to the Legal Services Commissioner about the conduct of an Australian legal practitioner by a client of the practitioner. The complaint may be made irrespective of when the conduct is alleged to have occurred although there are limitations upon the manner in which the complaint may be dealt with if it is made more than three years after the conduct complained of occurred (s 503 - 506, schedule 9 cl 17). There are numerous provisions for the determination of complaints and the making of disciplinary orders. Compensation orders may be made (ss 570-575). A complaint may be made and dealt with even though the Australian legal practitioner concerned is the subject of proposed or current criminal or civil proceedings relating to the subject matter of the complaint (s 600).

[31] The Supreme Court has inherent jurisdiction with respect to the control and discipline of local lawyers. That jurisdiction and the powers of the Supreme Court related thereto are not affected by anything in chapter 4 of the Legal Profession Act 2004 (s 590).

[32] Part 65A of the Supreme Court Rules provides:

2(1) There are assigned to the Court of Appeal proceedings in the Court in the exercise of the disciplinary powers of the Court with respect to legal practitioners and interstate legal practitioners.

(2) Proceedings in the Court under the Legal Profession Act 1987 (other than proceedings assigned to the Court of Appeal) are assigned to the Common Law Division."

[33] Disciplinary proceedings under the Legal Profession Act 2004 and in the exercise of the Supreme Court's inherent jurisdiction have been described as proceedings concerned with the protection of the public. These are not criminal proceedings, they are proceedings sui generis - Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207. Such proceedings are not ordinary legal proceedings and are not automatically determined in accordance with rules and procedures in ordinary adversarial proceedings or on the same basis as adversarial proceedings - Wentworth v NSW Bar Association (1992) 176 CLR 239 at 250 -1.

[34] In my opinion the claims for relief contained in paragraphs 2, 3 and 4 of the 4th amended statement of claim should be struck out as should paragraph [32] against the first defendant and paragraph [17] against the second defendant. Proceedings of this nature are to be brought by the appropriate authority and not by an individual litigant. The nature of such proceedings renders them inappropriate to be determined in ordinary litigation between the parties and disciplinary proceedings in the exercise of the inherent jurisdiction of the court are assigned to the Court of Appeal not to the common law division.

13 The basis for a solicitor's duty of care is not the Legal Profession Act 2004 or the Solicitors' Rules. The duty exists as a result of the relationship and, in most cases, by reason of the retainer between the solicitor and the client. Generally speaking, breaches of the Act and Rules do not give rise to a cause of action by the client against the solicitor and, where matters of professional conduct and/or costs are concerned, will not ordinarily inform a breach of the retainer or the duty of care owed by the solicitor.

14 In relation to costs the Act together with any Rules and Regulations made pursuant to the Act, provide a comprehensive system for dealing with disputes in relation to solicitors' and barristers' costs. Claims in this and other common law courts which have the effect of circumventing the statutory procedures, or providing some basis for an appeal against the determinations under those procedures not provided by the legislation, will not be permitted to be pleaded and pursued.

15 In the light of these legal principles I now turn to consider each of the claims made. Because the issue between the parties concerns the form and substance of the pleading it will be necessary to set out the proposed Statement of Claim, although it is a lengthy document. I shall deal separately with each of the transactions between the Plaintiff and the Defendant.

(1) Sale and loan to Hall

16 The Amended Statement of Claim pleads as follows:

2. In about July 2006 the second plaintiff retained the defendant to act for her in relation to the sale of real property owned by the plaintiff, being an apartment situated at 7/80 Beauchamp Road Wiley Park NSW ("the Sale of Land Retainer").

3. In about August 2006 the second plaintiff agreed by means of exchange of contract for sale of land to sell the said real property situated at 7/80 Beauchamp Road Wiley Park NSW to a Ms Christine Hall for a consideration of $159,000 ("the sale to Hall").

4. The terms of the Sale of Land retainer included a costs agreement prepared by the defendant and executed by the second plaintiff together with the defendant's estimate of the defendant's fees up to the settlement of sale in the sum of $1,200.

5. It was an implied term of the Sale of Land Retainer that the defendant would act for the second plaintiff in a proper and professional manner and would exercise the care of a reasonable and skilled practitioner having and professing to have expertise in the sale of land. Particulars.

a) The term was implied by the defendant accepting instructions in the Sale of Land Retainer and in accepting instructions from the second plaintiff to act on the sale to Christine Hall.

6. Further and in the alternative, at all material times the defendant owed the second plaintiff a duty of care.

7. Further and in the alternative, the defendant owed the second plaintiff a duty of care in providing advice to the second plaintiff and carrying out any necessary acts to protect the rights of the second plaintiff, as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 1

8. On or about late August 2006 in the course of the sale to Hall the second plaintiff agreed to lend to Christine Hall the sum of $8,000 to be paid as deposit on exchange of contracts.

9. Upon exchange of contracts in the sale to Christine Hall, a deposit of $8,000 was payable by Christine Hall, and this deposit was financed by the vendor the second plaintiff providing the above mentioned loan to Christine Hall.

10. In the course of the Sale of Land Retainer, the second plaintiff instructed the defendant to prepare a written loan agreement between the second plaintiff and Christine Hall, at the expense of the borrower Christine Hall, to give effect to the agreement between the parties for the vendor to lend the deposit of $8,000 to be loaned to Christine Hall, and to include a suitable form of security for the loan, and to permit the second plaintiff to lodge a caveat on the property after the settlement of the sale and transfer of the property. Particulars:

a) the instructions were given orally by the second plaintiff in the presence of the first plaintiff to the defendant in person.

11. Pursuant to implied terms of the Sale of Land retainer and/or pursuant to her duty of care the defendant should have shown any written loan agreement to the second plaintiff for her approval before submitting same to Christine Hall.

12. On about 3 December 2006 the defendant drafted a loan agreement.

13. On or about the 3rd of December 2006, in the course of the sale to Christine Hall, the second Plaintiff instructed the defendant to amend the loan agreement to permit an additional advance of $3,500 to be loaned out of settlement monies to Christine Hall for the purpose of paying mortgage insurance.

14. On about 3 December 2006 the defendant procured Christine Hall's signature upon the said loan agreement.

15. In the course of the sale of the property to Christine Hall, the second plaintiff loaned a total of $11,500.00 to Christine Hall, through the defendant, pursuant to the loan agreement drafted by the defendant. Particulars : The Sale price was reduced at settlement by $8,000 and $3,500 of settlement monies were paid to Christine Hall and subsequently forwarded to pay for mortgage insurance.

16. In drafting and acting on the loan agreement the defendant was negligent or in breach of express or implied duties or both. Particulars :

a) the defendant did not show the loan agreement to the second plaintiff prior to the execution of the loan agreement;

b) The loan agreement contained a term that the second plaintiff was entitled to caveat the property after sale, yet the defendant charged the second plaintiff the fee for the lodgement of a caveat, yet failed to place a caveat on the said property.

c) the second plaintiff did not see the loan agreement until approximately four months after the settlement of the sale to Hall and only after the intervention of the Office of The Legal Services Commissioner.

d) The loan agreement did not contain a suitable form of guarantee in the event of any default by Christine Hall.

17. On about 4 December 2006 the Sale to Hall settled, and the Torrens title for 7/80 Beauchamp Road Wiley Park NSW was transferred from the second plaintiff to Christine Hall.

18. Upon settlement of the Sale to Hall, the defendant paid the balance due upon settlement of approximately $151,000, from which the defendant permitted and authorised the following payments:

a) $142,000 to outgoing mortgagee on the property.

b) $3,500 to mortgage insurance, paid to Christine Hall's insurer.

c) Approximately $2,500 to Canterbury Council on account of Council fees, water rates, and related adjustments.

d) $3,000 to the defendant.

19. In authorising the payments described in 18(b) and 18(d) above the defendant was acting negligently and in breach of the terms of the Sale of Land retainer.

Particulars:

a) The defendant did not give the second plaintiff any prior warning that the loan agreement had been executed and that the sale to Hall had been appointed for settlement.

b) The second plaintiff did not authorise any distribution of funds due upon the settlement of the sale to Hall.

c) Prior to settlement the second plaintiff was not given any breakdown of the proposed settlement cheques.

d) The second plaintiff did not authorise the defendant to deduct fees of $3,000.

e) In deducting fees of $3,000 the defendant purported to charge the second plaintiff for the cost of preparing and lodging a caveat when no caveat was lodged or permitted to be lodged.

f) In deducting fees of $3,000 the defendant purported to charge the second plaintiff for the cost of preparing the loan agreement to Christine Hall, when the borrower, Christine Hall, was responsible for such charges as agreed by Christine Hall the second plaintiff and conveyed orally from the second plaintiff to the defendant in the presence of the first plaintiff.

g) The defendant did not obtain any right to lodge a caveat or any other form of reasonable security for the loan from the second plaintiff to Christine Hall.

h) Upon settlement of sale the defendant did not forward to the second plaintiff any documentation pertaining to the settlement or sale of the property.

i) Upon settlement of sale the defendant did not forward to the second plaintiff any invoice pertaining to the defendants fees regarding settlement or sale of the property.

20. Subsequent to the settlement, on or about October 2007, Christine Hall defaulted on her own mortgage obligations and the property situated at 7/80 Beauchamp Road Wiley Park NSW was sold by a mortgagee in possession.

21. Subsequent to settlement Christine Hall did not repay any part of the loaned monies of $11,500 to the second plaintiff and also went bankrupt and her bankrupt estate did not pay any dividend to the second plaintiff.

22. By reason of the defendant's negligence and breach of terms of retainer the second plaintiff suffered economic loss and damage.

Particulars:

a) the loan of $11,500.00 was not repaid to the second plaintiff.

b) there (sic) defendant obtained no security over the property acquired by Christine Hall to secure the second plaintiff claim on the outstanding loan amount.

c) the defendant charged the second plaintiff with the cost and or fee of establishing a caveat, yet no caveat was placed on the property

d) the defendant took $3,000.00 on settlement of the property without the consent or approval of the second plaintiff.

e) the defendant charged the second plaintiff costs and or fees for the establishment of loan documents contrary to the instructions of the second plaintiff.

f) as at 4th of December 2006 the loss in this matter is $13,300.00

g) the defendant also failed to forward any of her invoices for this matter, as per the Legal Professions (sic) Act 2004 No112 section 33.2

h) the defendant also failed to any of her invoices for this matter, as per the Legal Professions Act 2004 No112

i) the defendant also failed to include an estimate of any of the total legal costs for this matter, as per the Legal Professions Act 2004 No112 section 309.1.c

j) the defendant also failed to include in her bill a Notification Of Clients Rights for this matter, as per the Legal Professions Act 2004 No112 section 333.1.

17 This claim appears in substance to be a claim that by failing to lodge a caveat over the land to secure the repayment of $11,500 loaned by Mrs Constantinidis to Christine Hall, Mrs Constantinidis lost that money which was not paid by Christine Hall.

18 The Defendant submitted that the pleading does not show, as a matter of causation, that the breach alleged against the Defendant brought about the loss of the $11,500. No material facts are pleaded that tend to show there would have been money available from the sale which would have been available to Mrs Constantinidis. The Defendant's submission should be accepted.

19 The evidence shows that the mortgage of the incoming mortgagee, Perpetual Limited, was stamped for an initial advance of $153,177. When Perpetual exercised its power of sale after the default of Christine Hall, it sold the land for $140,000. Perpetual as the First Mortgagee was not paid the full amount owing to it. It is not alleged that there was any agreement whereby Mrs Constantinidis would have priority over Perpetual in relation to the $11,500 loan. Accordingly, the failure to lodge the caveat was not the cause of the loss to Mrs Constantinidis. The cause of the loss was variously the amount of the loan from Perpetual, the default by Christine Hall, the sale price obtained on the mortgagee sale and the bankruptcy of Christine Hall.

20 Accordingly, no cause of action is demonstrated.

21 The Plaintiffs attempted to support the pleading by suggesting that the matter concerned the costs the Defendant charged them in relation to the sale of the property to Ms Hall, particularly in the circumstances where she did not lodge the caveat. The issue of costs was, however, only part of the irrelevant particulars of the loss and damage suffered as a result of the $11,500 not being paid by Christine Hall. Even if a cause of action was otherwise established on the pleading, the Plaintiffs would not be entitled to recover the costs charged by the solicitor in addition to the recovery of damages, because the effect would be that they would be fully compensated for the failure of the solicitor not to have done what she ought to have done, but at no cost to them by reason of recovering the costs also.

22 The Plaintiffs should not be permitted to replead this claim because it is manifestly untenable.

23 Even if I am wrong about this, paragraph 7 cannot be allowed to stand because it alleges that the Defendant owed a duty of care as a result of the the Solicitors' Rules. Further, particulars (g), (h), (i) and (j) under paragraph 22 appear to be entirely irrelevant to the matter complained of. Those matters are, in any event, related to discipline and professional conduct.

(2) Saglimbeni Assault Matter

24 The Amended Statement of Claim pleads:

23. On 17 March 2003 the first plaintiff was assaulted by a Mr Anthony Saglimbeni.

24. On 5 October 2005 the first plaintiff retained the defendant to act for him in a suit for damages for personal injury received in the course of the above mentioned assault ("the Saglimbeni assault retainer").

25. It was an implied term of the Saglimbeni assault retainer that the defendant would act for the first plaintiff in a proper and professional manner and would exercise the care of a reasonable and skilled practitioner having and professing to have expertise in the obtaining, recovery, and enforcement of damages for personal injury.

Particulars.

a) The term was implied by the defendant accepting instructions in the Saglimbeni assault retainer.

26. Further and in the alternative, at all material times the defendant owed the first plaintiff a duty of care.

27. On 29 October 2005 the first plaintiff's claim against Anthony Saglimbeni was heard in the District Court in Sydney NSW.

28. On about 29 October 2005 the District Court gave judgement for first plaintiff against Anthony Saglimbeni, and ordered Anthony Saglimbeni to pay damages of $43,000 plus costs ("the Saglimbeni judgment").

29. Immediately upon the Saglimbeni judgment the first plaintiff instructed the defendant to enforce the Saglimbeni judgment by seeking a judgment creditor's sale of the judgment debtor's property including real property and/or seeking a mareva injunction against the assets of Saglimbeni or a writ against property real property in the sole name of Anthony Saglimbeni.

30. From 29 October 2005 to April 2006 the defendant took no steps or no reasonable steps to enforce the Saglimbeni judgment.

31. Between 29 October 2005 and April 2006, Anthony Saglimbeni divested himself of personal assets and encumbered and sold real property in his name.

Particulars : Anthony Saglimbeni sold and transferred inter alia real property situated in Croydon Road, Croydon, NSW

32. In April 2006 the defendant told the first plaintiff that she lacked sufficient expertise to enforce the Saglimbeni judgement, and transferred the first plaintiff's matter to another solicitor, Sally Nash of Sally Nash & Co but the defendant was still overlooking the matter, liaising with, providing information and instructing Sally Nash of Sally Nash & Co. on this matter.

33. During the course of the defendants (sic) retainer for the Saglimbeni judgement, the defendant incorrectly instructed Sally Nash & Co. to bankrupt Anthony Saglimbeni instead of instructing Sally Nash of Sally Nash & Co to secure real property in the name of Anthony Saglimbeni by way of writ for property by seeking a mareva injunction against the assets of Saglimbeni.

34. On the 15th of September 2006 at 9.30am, the defendant terminated all her retainers with the plaintiffs, by telephone, with no notice and with the full knowledge that a court date was pending in on the 17th of September 2006 for the Saglimbeni judgement.

35. On 17 September 2006 on the application of the first plaintiff filed by Sally Nash and Co, Anthony Saglimbeni was bankrupted by means of a sequestration order of the Federal Court of NSW.

36. The first plaintiff did not receive any dividend or other form of payment from the bankrupt estate of Anthony Saglimbeni by way of payment of the Saglimbeni judgement.

37. Between 29 October 2005 and April 2006, the defendant was guilty of negligence, and breach of express and implied terms of the Saglimbeni assault retainer:

Particulars:

a) the defendant did not seek to execute the Saglimbeni judgement against real property in the name of Anthony Saglimbeni.

b) The defendant took no steps to enforce the Saglimbeni judgement while Anthony Saglimbeni was divesting or encumbering his personal assets.

c) The defendant did not until April 2006 tell the first plaintiff she had insufficient expertise in the enforcement of judgements.

d) The defendant passed on the plaintiffs to Sally Nash & Co and incorrectly instructed Sally Nash & Co to bankrupt Anthony Saglimbeni.

e) The defendant passed on the plaintiffs to Sally Nash & Co and failed to instruct Sally Nash & Co place a writ over the real property and assets of Anthony Saglimbeni.

f) The first plaintiff suffered loss in this matter to the value of $119,000.00 as at 29th October 2005.

g) At the time the defendant had carriage of this matter and during the time the defendant was instructing Sally Nash & Co, Anthony Saglimbeni had unencumbered real property to the value of $800,000.00. Anthony Saglimbeni was sole heir to his fathers estate and his father had just recently passed away.

h) The assault by Anthony Saglimbeni upon the first plaintiff on 17 March 2003 occurred under circumstances giving the first plaintiff a reasonable expectation of obtaining compensation under the Victims Compensation Act, however by reason of the defendant's acting in the Saglimbeni assault retainer and her delay in filing the appropriate forms, completed and signed by the first plaintiff, the first plaintiff lost by passage of time his entitlements and expectations under the Victims Compensation Act.

i) The first plaintiff suffered loss in this matter to the value of $30,000.00 as at 29th October 2005.

38. By reason the negligence and breaches of the defendant the first plaintiff suffered loss and damage.

a) Particulars of Liquidated damages

(i) $43,000.00 original judgements

(ii) $15,000.00 approximate legals

(iii) $ 18,000.00 writ on property

(iv) $2,000.00 court costs

(v) $8,000.00 plaintiffs legal fees

(vi) $26,000.00 money not recovered by liquidator

PPB

(vii) $7,500.00 payment to Sally Nash & Co by

Plaintiffs

_______________________________________________

119,500.00 total of liquidated losses.

b) Particulars of general damages

(i) loss of opportunity to recover damages,

(ii) loss of opportunity to enforce the Saglimbeni judgement,

(iii) loss of opportunity to enforce judgement prior to the insolvency of Anthony Saglimbeni,

(iv) loss of prospects and expenses caused by delay,

(v) loss of opportunity to recover compensation under the Victims Compensation Act.

c) the defendant also failed to forward any of her invoices for this matter, as per the Legal Professions Act 2004 No112 section 33.2

d) the defendant also failed to sign any of her invoices for this matter, as per the Legal Professions Act 2004 No112.

e) the defendant also failed to include an estimate of any of the total legal costs for this matter, as per the Legal Professions Act 2004 No112 section 309.1.c.

f) the defendant also failed to include in her bill a Notification Of Clients Rights for this matter, as per the Legal Professions Act 2004 No112 section 333.1.

25 The essence of this claim is that Mr Constantinidis obtained a District Court judgment against Mr Saglimbeni for $43,000 plus costs on 29 October 2005. Despite being instructed to enforce the judgment against Mr Saglimbeni's property the Defendant took no steps to do so, and in the mean time Mr Saglimbeni sold and transferred the property he owned at Croydon so that enforcement against the property was not possible.

26 The evidence discloses that Mr Saglimbeni owned a property at 77 Croydon Avenue, Croydon which he purchased on 28 July 2005 with 2 mortgages on the title. The first mortgage to Nibio Investments Pty Ltd was stamped in respect of a loan of $546,000. The second mortgage to Lowteal Seconds Pty Ltd was stamped to a loan of $117,000.

27 By the time the Croydon land was sold on 28 December 2006 Mr Saglimbeni had already been made bankrupt on 17 September 2006. In addition, 4 caveats had been lodged against the land all of which were withdrawn on the date of the settlement.

28 In a manner similar to the matter of the sale to Hall, the Plaintiffs do not plead that which would show or tend to show that, at any time from the judgment on 29 October 2005 to the date Mr Saglimbeni was bankrupted, there was any equity in the land that would have enabled Mr Constantinidis to recover if a writ had been registered.

29 In a Statement which Mr Constantinidis verified in the witness box, he said that the property was sold by the mortgagee for $830,000. He identified a caveat lodged by a company called the Golodiael Lothlorien Pty Ltd which he said was for a third tier lending loan of $240,000. That caveat was dated 6 February 2006 and the loan agreement it referred to was dated 4 March 2005. Ultimately, the trustee in bankruptcy disbursed some $26,000 to Golodiael Lothlorien.

30 There would appear to have been time for the Defendant to register the writ between October 2005 and February 2006. However, the position with regard to what equity was available is left unclear and there is no pleading concerning the matter. The $26,000 paid to the caveator might suggest that some equity was, or may have been, available if the Defendant had acted expeditiously to register the writ.

31 It is difficult to see how anything but the amount of the District Court judgment represents the loss. The claims for costs and legal fees seem misconceived when they would have been incurred in any event. The amount of $18,000 for "writ on property" is not understood, there being no explanation about them in the pleading. The "$26,000" being "money not recovered by liquidator PPB" appears to be a doubling up on the basis that if the writ had been registered the Plaintiffs may have recovered that amount. They cannot, however, claim the $43,000 plus the $26,000.

32 This claim differs from the claim concerning the sale to Hall only because the evidence does not show with any certainty that some or all of the judgment sum would not have been able to be recovered from the land had the writ been issued. Although the amounts of the mortgages, together with the existence of the 4 caveats, and the assertion that no dividend was paid to Mr Constantinidis from Mr Saglimbeni's bankrupt estate all suggest that there was little or no equity in the property, the Plaintiffs ought not to be precluded, if they can plead the matter properly, from being able to make a claim in that regard.

33 There is a subsidiary matter concerning this claim and it concerns what appears in paragraph 37(h) in relation to Victims Compensation.

34 Certainly the matter is not properly pleaded and it ought to be. It is quite inappropriate that it should simply appear as a particular of negligence. On its face it appears to raise an entirely separate claim.

35 Section 26 Victims Support and Rehabilitation Act 1996 provides:

26 Time for lodging applications

(1) An application for statutory compensation must be duly lodged within 2 years after the relevant act of violence occurred or, in the case of a family victim, within 2 years after the death of the primary victim.

(2) An application that is lodged out of time may be accepted with the leave of the Director.

36 The Plaintiffs assert that Mr Constantinidis was assaulted on 17 March 2003. He did not retain the Defendant until 29 October 2005 in relation to the matter. Prima facie, the matter was out of time. However, s 26(2) enables an extension of time with the leave of the Director. In theory, Mr Constantinidis could still make application for Victims Compensation, but the further passage of time may make that more difficult. In any event, if he has a claim against the Defendant in relation to it, it ought to be properly pleaded.

37 Neither of these claims is hopeless on the material that is available. However, the pleading as it currently stands is embarrassing and should not be allowed.

(3) Personal Injury Matter

38 The Amended Statement of Claim pleads:

39. On 5 November 2005 the first plaintiff whilst in the professional offices of Vasso Tsolakis solicitor suffered a slip and fall and suffered injuries to his back shoulder and head. Particulars:

a) On 5 November 2005, under the instructions of the defendant, the first plaintiff attended the office of Vasso Tsolakis to collect a file.

b) While leaving the office and descending stairs within the control of Vasso Tsolakis, the first plaintiff slipped on a step that was wet and slippery due to water dripping from an air conditioner.

c) The slip caused the first plaintiff to fall, and violently strike his back, shoulder and head upon the ground, stairs and wall.

d) Since 5 November 2005 the first plaintiff has suffered pain and disabilities and other injuries loss and damages resulting from the slip and fall.

40. The abovementioned injuries to the first plaintiff occurred under circumstances giving the first plaintiff a reasonable expectation of obtaining damages for personal injury on the basis of negligence by Vasso Tsolakis or by the owner/occupier of the property or both.

41. On 6 November 2005 the first plaintiff retained the defendant to act for him in a claim for damages personal injury arising out of the slip and fall on 5 November 2005 ("the personal injury retainer").

42. From 6 November 2005 to March 2006 the defendant did initial investigations and made enquiries relating to the personal injury retainer.

43. After 6 November 2005 the defendant was guilty of negligence in her work on the personal injury retainer and did not satisfy the express and implied terms of the retainer:

Particulars:

a) The defendant failed to lodge a statement of claim or other suitable writ against Vasso Tsolakis and/or his insurer and/or the owner/occupier of the property.

b) The defendant failed to take sufficient reasonable steps to follow up the personal injury claim of the first plaintiff.

c) The defendant failed to provide the first plaintiff any of her paperwork relating to the personal injury matter

44. By reason of the defendant's negligence and breach of terms of retainer, the first plaintiff suffered economic loss and damage, including but not limited to

(a) loss of opportunity to recover damages,

(b) loss of prospects and expenses caused by delay.

(c) The first plaintiff suffered loss in this matter to the value of $33,000.00 as at 5th November 2005.

d) the defendant also failed to forward any of her invoices for this matter, as per the Legal Professions Act 2004 No112 section 33.2

e) the defendant also failed to sign any of her invoices for this matter, as per the Legal Professions Act 2004 No112

f) the defendant also failed to include an estimate of any of the total legal costs for this matter, as per the Legal Professions Act 2004 No 112 section 309.1.c

g) the defendant also failed to include in her bill a Notification Of Clients Rights for this matter, as per the Legal Professions Act 2004 No 112 section 333.1.

39 The claim here is that the First Plaintiff suffered a slip and fall on 5 November 2005 and retained the Defendant to act for him in a claim for personal injuries.

40 It will be recalled, however, that the Defendant terminated the retainer on 15 September 2006. Even assuming that the Defendant breached her duty of care and her retainer in not having done anything in relation to the personal injuries claim, s 50C Limitation Act 1969 provides a 3 year limitation period (in the first instance) for personal injuries claims. It cannot be said, therefore, that at the time of the termination of the Defendant's retainer the First Plaintiff had suffered any loss. He only suffers loss when the cause of action becomes statute barred: Walmsley v Cosentino [2001] NSWCA 403 at [46]; Cheney & Wilson v Duncan [2001] NSWCA 197 at [28]; Wilson v Rigg [2002] NSWCA 246 at [31]-[34].

41 This claim is doomed to fail. The Plaintiffs should not be permitted to replead it.

(4) Purchase from Landcorp Matter

42 The Amended Statement of Claim pleads:

45. In September 2001 the first and second plaintiffs exchanged contracts with the corporation Landcorp NSWPty Ltd ("Landcorp") for the first and second plaintiffs to buy "off the plan" a residential unit being unit #6 in a foreshadowed development at 13-19 Bryant Street Rockdale being developed by Landcorp.

46. Pursuant to the above mentioned contract, the plaintiffs paid to Landcorp the total consideration payable under the contract, being $180,000.00 (one hundred and eighty thousand dollars).

47. On the 27th of May 2005 the plan of the development at 13-19 Bryant Street Rockdale was registered in the Land Titles Office and certificates of title were issued for the units therein including the abovementioned unit #6.

48. Between June 2004 and 5 October 2005 and at all material times thereafter Landcorp NSW Pty Ltd was in the breach of the above mentioned agreement:

Particulars:

a) It was a term of the above mentioned agreement that completion should occur in June 2005.

b) From June 2005 onwards Landcorp was not ready willing nor able to complete the agreement.

c) From early 2003 Landcorp demonstrated its unwillingness to honour the contract as it had offered the unit #6 for sale to the public through its appointed real estate agent.

d) At all material times after the issue of a Torrens System title in respect of the above mentioned unit #6, Landcorp refused and omitted to convey this title to the plaintiffs.

49. On 5 October 2005 and thereafter the first and second plaintiffs retained the defendant to act for them in relation to the above mentioned breach ("the Purchase From

Landcorp retainer").

Tony Rogers

50. On about 13 October 2005 the first and second plaintiffs retained the services of Mr Tony Rogers barrister for the purpose of obtaining advice and drafting pleadings for the Plaintiffs to use in proceedings against Landcorp (NSW) Pty Ltd for the objective of obtaining title to the above mentioned unit #6, and in about January-February 2006 Mr Tony Rogers drafted such pleadings and a supporting draft affidavit.

51. At all material times the defendant owed to the plaintiffs a duty of care in relation to the Purchase From Landcorp retainer.

52. It was a term of the Purchase From Landcorp retainer that the defendant would:

a) contact and liaise with Mr Tony Rogers.

b) Obtain from Mr Tony Rogers a draft statement of claim against Landcorp NSW Pty Ltd, and supporting affidavit.

c) file and serve any statement of claim prepared by Mr Rogers.

53. The defendant breached the terms of the Purchase From Landcorp retainer and also breached her duty of care:

a) the defendant refused and omitted to file a statement of claim prepared by Tony Rogers.

b) The defendant refused to return the phone calls of Mr Tony Rogers and otherwise refused to liaise with him.

c) The defendant incorrectly advised the plaintiffs that the draft statement of claim produced by Mr Tony Rogers was unsuitable for filing and this advice was false.

Caveat

54. In about 5 October 2005 the plaintiffs lodged a caveat upon Landcorp's title to unit #6 in SP 74910, being the completed development of real property located at 13-19 Bryant Street Rockdale, claiming an interest under the abovementioned contract.

55. It was a further term of the Purchase From Landcorp retainer that the defendant would:

a) Preserve, defend and if necessary extend the abovementioned caveat placed by the Plaintiffs upon Landcorp's title to real property located at 13-19 Bryant Street Rockdale, which caveat claimed an interest under the contract of sale made in September 2001.

56. In mid December 2005 Landcorp served a lapsing notice upon the plaintiffs in respect of the caveat lodged on 5 October 2005, and the first plaintiff gave this notice to the defendant with instructions to defend or extend the caveat.

57. On 2 January 2006 a Judge of the NSW Supreme Court in Case # 1002 / 2006 gave the first and second plaintiffs leave to renew the caveat upon Landcorp under the same terms and condition.

58. On about 2 January 2006 the defendant pursuant to the Purchase from Landcorp retainer prepared and lodged with the Land and Property Management authority a new caveat dated 3rd January 2006 over Landcorp's title to real property located at unit 6, 13-19 Bryant Street Rockdale - caveat # AC19133X ("the new caveat on Landcorp")

59. The new caveat on Landcorp was inadequate for the purposes of the first and second plaintiffs and the work of the defendant in preparing this caveat was negligent and also breached her duty of care:

Particulars:

a) The new caveat dated 3rd January 2006 failed to protect the claim of the caveators from the rival claims of a mortgagee in possession. It did not protect the plaintiffs from mortgagee in possession taking over the property.

b) The new caveat dated 3rd January 2006 did not include on the form a clause preventing the lodgement of a transfer or sale by a mortgagee in possession.

c) The new caveat dated 3rd January 2006 did not prevent the transfer by a mortgagee in possession of unit #6 to third parties.

Loss of Unit #6

60. In February 2006 the corporation Donovan Oates Hannaford Mortgage Corporation Ltd, as mortgagee of Landcorp as mortgagor, took possession of the land at 13-19 Bryant Street Rockdale, including unit #6 the subject of the first and second plaintiffs contract with Landcorp.

61. On 10th February 2006 Donvan Oates Hannaford Mortgage Corporation Ltd transferred title to unit #6 to the corporation Samlo Pty Ltd.

62. On 1st September 2006, the plaintiffs place a further caveat upon Unit #6 claiming an interest under a contract of sale caveat # AC573321('the Samlo caveat") and a copy of the caveat was given to the defendant.

63. On 15 September 2006 by notice given on that day, by telephone at 9.30am, the defendant stopped acting for the plaintiffs in all matters including the Purchase from Landcorp retainer.

64. On 21 September 2006 Samlo Pty Ltd served a lapsing notice upon the defendant in respect of the Samlo Caveat.

65. The defendant was negligent in relation to the lapsing notice.

Particulars:

a) The defendant accepted service of the lapsing notice.

b) The defendant was under a duty to give prompt notice to the plaintiffs of the lapsing notice.

c) The defendant was under a duty to return the lapsing notice to the Land and Property Management Authority.

d) The defendant failed to notify the Land and Property Management Authority that she had ceased to be the address for service.

e) The defendant failed to return the lapsing notice to the Land and Property Management Authority

f) The defendant did not give notice to the plaintiffs of the lapsing notice until 14 November 2006.

g) By the time the plaintiffs had notice of the lapsing notice the Samlo caveat had lapsed and the property of unit #6 was the subject of a contract of sale and the plaintiffs were unable to place another caveat.

66. In about late October 2006 Samlo Pty Ltd agreed to sell unit #6 at 13-19 Bryant Street Rockdale to a third party, and in early 2007 Samlo Pty Ltd completed and transfer of title for #6 to a third party.

67. By reason of the defendant's negligence and breach of terms of retainer as set out in paragraphs 53, 59, 65, the first and second plaintiffs suffered economic loss and damage, including but not limited to

(a) loss of purchase price paid in the sum of $180,000.

(b) loss of title #6 at 13-19 Bryant Street Rockdale, being valued at $650,000 in October 2006, and loss of opportunity to prevent loss of the title,

(c) loss of opportunity to recover damages from Landcorp, interest and expenses

(d) loss of prospects and legal expenses caused by delay. - $40,000.00

(e) loss of interest paid for #6 at at 13-19 Bryant Street Rockdale - $65,000.00

(f) loss of income form rental of #6 at at 13-19 Bryant Street Rockdale - $92,000.00

(g) loss of the benefit of a caveat and its security - the total of the above. The first plaintiff also claims damages including compensatory damages and punitive damages for malicious disregard for the plaintiffs rights and interests.

h) the defendant also failed to forward any of her invoices for this matter, as per the Legal Professions Act 2004 No 112 section 33.2

i) the defendant also failed to sign any of her invoices for this matter, as per the Legal Professions Act 2004 No 112

j) the defendant also failed to include an estimate of any of the total legal costs for this matter, as per the Legal Professions Act 2004 No 112 section 309.1 .c

k) the defendant also failed to include in her bill a Notification Of Clients Rights for this matter, as per the Legal Professions Act 2004 No112 section 333.1.

43 As best as can be discerned from the pleading the claim is for the loss of unit 6, 13-19 Bryant Street Rockdale by virtue of the Defendant's not lodging an adequate caveat in early January 2006, and for not giving notice to the Plaintiffs, after she ceased to act, of the receipt of a lapsing notice in respect of that caveat. The result was that the caveat lapsed and the particular unit was ultimately sold to a third party. The particulars of loss are a little hard to understand. There seems to be some doubling up by the claim for the purchase price in addition to the value of the unit, and it is not clear what is meant by "loss of prospects and legal expenses caused by delay - $40,000".

44 The various title documents from the LPI show that the earlier reference to the land upon which the strata block at 13-19 Bryant Street Rockdale was built was "19-20/6362 A-B/185557". On that land there were two mortgages to Donovan Oates Hannaford Mortgage Corporation Ltd. Those mortgages are shown on the folio reference 1/1076560. That folio is then cancelled with new folios being created for lots 1 to 59 and the common property in SP74910. Lot 6, the lot contracted to be purchased by the Plaintiffs, came to have the title reference 6/SP74910. The 2 relevant mortgages are AB4420D which is stamped for $2,553,793, and mortgage 8866468M in respect of a loan amount of $12,909,333. The registered proprietor of the land was Landcorp (NSW) Pty Ltd. The mortgages were registered on the land (including over unit 6) prior to the Defendant being retained by the Plaintiffs.

45 On or about 6 October 2005 the Plaintiffs lodged a caveat over what appears to be more land than the unit they purchased. In December 2005 Landcorp served a lapsing notice on the Plaintiffs in respect of that caveat. The Plaintiffs then allege that they gave that lapsing notice to the Defendant with instructions to defend or extend the caveat.

46 The Plaintiffs allege that the caveat lodged by the Defendant on 2 January 2006 was inadequate because it failed to protect them from the rival claims of the mortgagee in possession. On 10 February 2006 Donovan Oates Hannaford Mortgage Corporation Ltd transferred lots 5, 6 and 7 under a mortgagee power of sale to a company called Samlo Pty Ltd for $1,180,000.

47 The Defendant has identified the way in which it is suggested that the caveat did not adequately protect the Plaintiffs' interest (this was not identified by the Plaintiffs). Section 74H(5) Real Property Act 1900 provides:

74H(5) Except in so far as it otherwise specifies, a caveat lodged under section 74F to protect a particular legal or equitable estate or interest in land, or a particular right arising out of a restrictive covenant, does not prohibit the Registrar-General from recording in the Register with respect to the same land:

...

(i) in relation to a mortgage, charge, covenant charge or lease to the recording of which the caveator has consented or in respect of the recording of which the caveat has lapsed - a dealing effected by the mortgagee, chargee, covenant chargee or lessee, including a dealing effected in the exercise of a power of sale or other power or right conferred by the mortgage, charge, covenant charge or lease or by or under law,

...

48 However, even accepting that the caveat could have so specified, the equitable interest that the Plaintiffs had in unit 6 by virtue of the contract to purchase the land could not have priority over the registered mortgages of Donovan Oates. Nor could such a caveat ultimately prevent the mortgagee in possession from being able to deal with the property.

49 It would then appear that after the land was sold by the mortgagee to Samlo the Defendant, on the Plaintiffs' instructions, lodged what Mr Constantinidis described as a second caveat against Samlo Pty Ltd. The Defendant's retainer was then terminated on 21 September 2006. However, a lapsing notice was served on her because hers was the address for service. The allegation is that she did nothing about that until she posted it to the Plaintiffs on 14 November 2006. The result was that that caveat lapsed and the Plaintiffs claim they lost the property.

50 In my opinion, it is very clear that the Plaintiffs did not lose their rights to this property by anything to do with the caveats which were lodged, nor by the failure to deal with lapsing notices in respect of those caveats. Donovan Oates as registered mortgagee had priority over the interests of the Plaintiffs. No matter what the caveats said with respect to s 74H(5)(i) they could not ultimately have prevented the sale by the mortgagee in possession.

51 There was a suggestion by virtue of what is contained in para 57 of the Amended Statement of Claim that a Judge of this Court in Case 1002/2006 considered that the Plaintiffs might have had some rights to prevent the sale. For that reason I asked the Plaintiffs to identify and forward to me a copy of the judgment. What was ultimately forwarded was nothing more than an order of the Court that gave leave to the Plaintiffs to file a further caveat claiming the same interest as the lapsed one. The date of the order makes it clear that it was made by a Vacation Judge, and was likely to have been done without a consideration of any merits of the matter. Certainly, no reasons are available suggesting why the order should be made. In those circumstances I cannot infer that a Judge of this Court considered that the Plaintiffs' interest had any priority over that of the registered mortgagee.

52 The claim in respect of the Defendant's failures concerning the purchase of unit 6 is untenable and is doomed to failure. The Plaintiffs should not be permitted to replead this matter.

(5) Tsolakis Trust Monies Instructions

53 The Amended Statement of Claim pleads:

68. On or about the 6th of October 2005, the plaintiffs instructed the defendant to pursue an amount of approximately $60,000.00 (sixty thousand dollars) that was taken in trust from the first and second plaintiffs and not accounted for Mr Vasso Tsolakis of Tsolakis Solicitors

69. The defendant misled the plaintiffs and was negligent in her actions in relation to the abovementioned trust monies.

Particulars : The defendant breached her duty of care to the plaintiffs by:

a) not acting in a competent and timely manner to compel Tsolakis Solicitors account for these funds.

b) not acting in a competent and timely manner to recover these funds.

c) Failing to report Mr Tsolakis to the relevant authorities who audit solicitors trust accounts. The matter was not pursued and the monies were never recovered casing loss to the plaintiffs.

d) Failing to sign any of her invoices for this matter, as per the Legal Professions Act 2004 No112 section 33.2

e) Failing to include an estimate of any of the total legal costs for this matter, as per the Legal Professions Act 2004 No 112 section 309.1.c

f) Failing to include in her bill a Notification Of Clients Rights for this matter, as per the Legal Professions Act 2004 No 112 section 333.1.

Particulars : the Defendant misled the plaintiffs in that she:

g) Told the plaintiffs that she was addressing the matter of the trust monies when if fact she was not.

h) the defendant also failed to forward any of her invoices for this matter, as per the Legal Professions Act 2004 No 112 section 33.2

i) the defendant also failed to sign any of her invoices for this matter, as per the Legal Professions Act 2004 No 112

j) the defendant also failed to include an estimate of any of the total legal costs for this matter, as per the Legal Professions Act 2004 No112 section 309.1.c

k) the defendant also failed to include in her bill a Notification Of Clients Rights for this matter, as per the Legal Professions Act 2004 No112 section 333.1.

70. By reason of the defendant's negligence and misleading conduct the plaintiffs lost the opportunity to recover the abovementioned trust monies of approximately $60,000.00, and the plaintiffs claim damages for this loss.

54 It is not clear from the pleading when Mr Tsolakis is supposed to have taken the $60,000 from his trust account or when he did not account for it to the Plaintiffs. However, it is clear from the pleading that the Defendant was not instructed to recover this money until 6 October 2005. Her retainer ceased on 15 September 2006.

55 Section 48 Limitation Act provides that, ordinarily, there is a 6 year limitation period for a cause of action in respect of a breach of trust. Unless the limitation period expired between 6 October 2005 and 15 September 2006 the Plaintiffs have suffered no loss in respect of any breach by the Defendant for reasons given in para [40] above.

56 During the course of argument Mr Constantinidis said that the breach of trust took place during the period the Plaintiffs retained the Defendant. There was no evidence about this. After the matter had been debated for some time between the Court and the Plaintiffs Mrs Constantinidis accepted (without demur from Mr Constantinidis) that this claim should be struck out, and they would proceed against Mr Tsolakis for this money in the proceedings they intend to bring against him.

(6) Barrister McMillan

57 The Amended Statement of Claim pleads:

71. From about September 2001 to 5 October 2005 a solicitor Mr Vasso Tsolakis acted for the Plaintiffs in relation to the purchase of Unit #5 (sic) from Landcorp.

72. In about November 2005 the plaintiffs authorised the defendant to brief a barrister Mr Stephen McMillan to advise and act for the plaintiffs in relation to a possible negligence claim against the solicitor Mr Vasso Tsolakis.

73. In April 2006 the defendant held a three hour conference with Mr Stephen McMillan for purposes that were not authorised by nor reasonably required by the Plaintiffs.

74. On 11 April 2006 the defendant instructed the plaintiffs to attend a conference with Mr Stephen McMillan in his chambers and misleadingly told the plaintiffs that the purpose of this conference was to discuss the negligence action against a Mr Tsolakis, whereas the conference as conducted by Mr McMillan and the defendant discussed only the issues of the Purchase from Landcorp retainer.

75. In about April of 2006, the defendant received and accepted from the barrister Mr McMillan a statement of claim and affidavit for use in the Purchase From Landcorp matter that was identical in every way with the drafting work that had been completed by Barrister Anthony Rogers in January 2006, and had been paid for in full by the plaintiffs to Barrister Anthony Rogers.

76. After April 2006 the defendant instructed or permitted Mr Stephen McMillan to render to the plaintiffs a tax invoice for $5,720 inclusive of GST, being for work that the plaintiff's did not request or require or for work that was plagiarised by Barrister Mr McMillan from the barrister Mr Rogers.

77. The defendant subsequently paid barrister McMillan for the production of the above mentioned statement of claim and affidavit as per the above mentioned tax invoice and has negligently and in breach of her retainer claimed re-imbursement of that payment from the plaintiffs and to date has a writ against the first plaintiffs real property.

Particulars

a) the defendant held meetings with a third party (Barrister McMillan):

i) without the knowledge or consent of the plaintiffs.

ii) without third party cost agreements being issued as per the Legal Professions Act 2004 No 112 section 332.

iii) without third party cost agreements being signed as per the Legal Professions Act 2004 No 112 section 332.

b) The defendant failed in her duty of care to forward her invoices as per the Legal Professions Act 2004 No 112 section 33.2 (sic)

c) The defendant failed in her duty of care to sign her invoices as per the Legal Professions Act 2004 No 112 section 33.2

d) The defendant failed in her duty of care to include an estimate of the total legal costs as per the Legal Professions Act 2004 No 112 section 309.1.c

e) the defendant also failed to include in her bill a Notification Of Clients Rights for this matter, as per the Legal Professions Act 2004 No 112 section 333.1.

f) The defendant failed in her duty of care to issue interim bills as per the Legal Professions Act 2004 No 112 section 334.1.

FURTHER PARTICULARS OF LOSSESS

a) wasted costs and time

b) loss of opportunity to prosecute Mr Tsolakis at the time

c) overpayment of tax invoice to Mr McMillan

d) hours of correspondence with the Office Of The Legal Services Commissioner

e) hours of correspondence with the court appointed cost assessor.

58 This part of the Amended Statement of Claim appears to relate partly to the purchase from Landcorp and also to a potential claim against Mr Tsolakis for acting in the way he did concerning that purchase. The matters seem to be entirely intertwined and in that sense are embarrassing, because it cannot be ascertained what the complaint is that is being made. For example, para 72 pleads instructions to the Defendant to brief Mr McMillan "to advise and act for the Plaintiffs in relation to a possible negligence claim against the solicitor Mr Vasso Tsolakis". However, para 75 refers to a Statement of Claim prepared by Mr McMillan for use in the Landcorp matter, and makes the complaint that it was plagiarised from a previous Statement of Claim prepared by another barrister, Mr Anthony Rogers. The only losses particularised seem to relate to the costs of paying Mr McMillan although there is also said to be a "loss of opportunity to prosecute Mr Tsolakis at the time".

59 As with other matters, a number of the particularised complaints concern alleged breaches of the Legal Profession Act and the Defendant's responsibilities in relation to billing clients. These do not form the basis of any cause of action.

60 Since the Landcorp matters arose at the earliest in September 2001 (see para 45 of the Amended Statement of Claim) and any breaches by Mr Tsolakis are likely to have been later, the limitation period for suing Mr Tsolakis had not expired at the time the Defendant ceased to act for the Plaintiffs. Accordingly, if what is contained in paras 71-77 concerns negligence for not having instituted proceedings against Mr Tsolakis (as seems likely) they are doomed to fail. If it is only about costs (the other possibility) it is doomed to fail. Accordingly, this matter should not be allowed to be repleaded.

(7) Briefing Barrister Raphael

61 The Amended Statement of Claim pleads:

78. On about 2 May 2006 at the insistence of Barrister McMillan, the defendant engaged a barrister, Mr Raphael to undertake work on the plaintiffs behalf in respect of the

following matters:

a) Possible negligence action against Tsolakis Solicitors in relation to the purchase from Landcorp;

b) In defence of unit 6,13-19 Bryant Street, Rockdale, against claims by Donovan Oates Hannaford Mortgage Corporation Ltd. In about February 2006 Donovan Oates Mortgage Corporation Ltd became mortgagee in possession, as described above

c) In opposition to sale by Donovan Oates Mortgage Corporation Ltd of unit #6 to Samlo Pty Ltd, as described above.

79. The defendant failed in her duty of care and professional conduct, to provide Barrister Raphael, the necessary information, briefs and directions in a timely manner.

Particulars:

a) document requested by Barrister Raphael on the meeting held in his office on the last week of May 2006 was not produced to him until after the 8th of August 2006.

b) Letters to Middletons Lawyers stating that a statement of claim against Mr Tsolakis was forthcoming in seven days , never eventuated.

c) Letter required by the plaintiffs from Barrister Raphael to be forwarded to the NSW Police for equitable fraud charges to be laid against the directors of Donovan Oates Hannaford Mortgage Corporation Ltd and Mr Louis Elkhoury of Samlo Pty Ltd was never drafted.

80. Barrister Raphael prepared and charged for the preparation of certain documents and letters to Donovan Oates Hannaford Mortgage Corporation Ltd, and the defendant paid for these documents without receiving same and has negligently and in breach of her retainer claimed re-imbursement of that payment from the plaintiffs.

81. The defendant misled the plaintiffs and displayed professional negligence, professional incompetence, professional misconduct and unsatisfactory professional conduct:

Particulars:

a) the defendant held meetings with a third party (Barrister Raphael):

i) without the knowledge or consent of the plaintiffs.

ii) without third party cost agreements being issued as per the Legal Professions Act 2004 No 112 section 332.

iii) without third party cost agreements being signed as per the Legal Professions Act 2004 No 112 section 332.

b) The defendant failed in her duty of care to forward her invoices as per the Legal Professions Act 2004 No 112 section 33.2 (sic)

c) The defendant failed in her duty of care to sign her invoices as per the Legal Professions Act 2004 No 112 section 33.2

d) failed in her duty of care to include an estimate of the total legal costs as per the Legal Professions Act 2004 No 112 section 309.1.c

e) failed in her duty of care to include in her bill a Notification Of Clients Rights as per the Legal Professions Act 2004 No 112 section 333.1.

f) failed in her duty of care to issue interim bills as per the Legal Professions Act 2004 No 112 section 334.1.

g) failed to pursue the negligence claim against Tsolakis Solicitors concerning the purchase from Landcorp, resulting in both unnecessary delays and incurring of costs that were not authorised by the plaintiffs. The said Mr Raphael had requested the defendant to provide certain documents in respect of the above matters that were either not forthcoming or produced so late that they had no effect. The defendant had failed to provide such documents to the barrister in a timely manner, resulting in the plaintiffs rights being compromised.

82. By reason of matters in paragraphs 78 to 81, the plaintiffs suffered loss and damage:

PARTICULARS:

a) wasted costs and time

b) loss of opportunity to prosecute Mr Tsolakis at the time

c) overpayment of tax invoice to Mr Raphael

d) hours of correspondence with the Office Of The Legal Services Commissioner

e) hours of correspondence with the court appointed cost assessor.

62 The complaints here appear to relate to a proposed claim against Mr Tsolakis in relation to the purchase from Landcorp, and in relation to the sale by Donovan Oates to Samlo (see para 78). For reasons that I have earlier given, any claim in relation to the mortgagee sale by Donovan Oates was doomed to failure. Similarly, any claim against Mr Tsolakis was not statute barred by the time the Defendant ceased to act for the Plaintiffs.

63 In one sense, the complaints in relation to the briefing of all of the barristers appear in part to be particulars of negligence against the Defendant in relation to these other matters. For that reason, and to that extent, they are doomed to fail.

64 It is also apparent that there are complaints about costs and fees relating to the barristers' work and monies charged by the Defendant in relation to them. They are matters that have been, or should be, determined by costs assessors under the statutory scheme for challenging legal costs. They should not be in the present pleading.

(8) Briefing Barrister O'Sullivan

65 What I have said above concerning Barrister Raphael is equally applicable here. It is not necessary to set out the pleading in relation to Barrister O'Sullivan because it does not take the matter beyond the complaints made with respect to the other barristers.

(9) Failure to forward documents and failure to notify of civil proceedings

66 The Amended Statement of Claim pleads:

88. On about December 2006 Mr Warwick Ward barrister served Court documents upon the defendant purporting to sue the first plaintiff in contract for $11,000 being for fees for acting for the first plaintiff in the Saglimbeni assault matter.

89. On or about 30th of November 2006, the defendant wrongly and without instructions, accepted service of the abovementioned documents and negligently failed to promptly forward same to the first plaintiff or to notify him of their contents.

Particulars :

a) the defendant accepted service of court documents served by or for on or about the 30th of November 2006

b) the date set for hearing on these documents was 14th of January 2007

c) the defendant sent the abovementioned documents to the first plaintiff no earlier than 30 January 2007.

90. By reason of the wrongful and negligent action of the defendant, the first plaintiff had no notice of the deadline for the filing of a defence against the civil claim of Mr Ward barrister.

91. On 14 January 2007 a judge of the Supreme Court ordered the civil claim of Mr Ward to be assessed under the Legal Profession Act.

92. On 20 January 2007 the court-appointed costs assessor contacted the first plaintiff whereupon the first plaintiff first became aware of the Mr Ward's civil claim.

93. By reason of the defendants negligence, the first plaintiff suffered injury loss and damage: Particulars:

a) from lost time,

b) lost expenses and costs,

c) the first plaintiff was threatened with bankruptcy proceedings, and was occupied by a civil claim and by the assessment process until August 2007.

d) Mental stress and pain and suffering,

e) loss of opportunity to defend Mr Wards (sic) proceedings

94. The first plaintiff claims damages including compensatory damages and punitive damages for malicious disregard for the plaintiffs (sic) rights and interests.

67 It appears that what is alleged is that a barrister, who had acted at the time of the renewal of the caveat in respect of Unit 6 at Rockdale in January 2006, had not been paid and sued the Plaintiff for his fees. The Defendant did not pass on the Court documents to the Plaintiffs. When the matter went before a Judge of this Court (so it is asserted) the matter was referred to a costs assessor (as one might expect) and Mr Constantinidis became aware of it when he was contacted by the costs assessor.

68 As the fees being sued for totalled $11,000 it is far from clear why the proceedings were brought in this Court. Since, however, the First Plaintiff was notified by the costs assessor before the matter was dealt with I asked Mr Constantinidis what his case was in relation to this matter. He said:

My case is pain and suffering. I went into mental stress, I went into mental breakdown, I couldn't go to work. ... I am very fragile.

69 It should be noted also that the Plaintiffs accepted that they had not paid the fees and were not able to do so in full but offered to pay them under an arrangement they proposed but which was apparently rejected.

70 The claim is therefore one for personal injury being mental harm and, accordingly, falls within the purview of the Civil Liability Act 2002. Section 16 sets a threshold of 15% of a most extreme case for damages for non-economic loss.

71 Even if I ignore the fact that nothing in Mr Constantinidis's demeanour and behaviour when arguing his case suggested the slightest fragility, it is inconceivable that he would recover damages for mental stress and pain and suffering that exceeded the 15% threshold, where all that happened was that he did not find out about the claim until it was referred to a costs assessor by a judge of the Court.

72 The claim is hopeless and should not be allowed to be repleaded.

(10) Defendant's Brain Surgery

73 The Amended Statement of Claim pleads:

95. On or about 1999 to 2001, the defendant was admitted to St. Vincents Private Hospital at Darlinghurst in Sydney for extensive surgery to remove a tumor from the brain.

96. The abovementioned tumor was between the size of a large egg and a small mandarin.

97. As a consequence of the abovementioned surgery, the defendant was suffering the effects of that brain surgery and or its associated medication and was or may have been functioning with a brain disability and her capabilities were diminished by the after effects of brain surgery and, or medication.

98. During the defendants (sic) retainer by the plaintiffs the defendant failed to disclose to the plaintiffs:

a) that she had undergone brain surgery and that she was suffering the effects of that brain surgery and or its associated medication.

b) that she was or may have been functioning with a brain disability.

99. During the defendants retainer by the plaintiffs the defendant took on responsibilities:

a) that were beyond her capabilities.

b) that were diminished by the after effects of brain surgery and or its associated medication.

100. During the defendants retainer by the plaintiffs the defendant:

a) failed to give proper care, concentration and attention to her duties.

b) failed to give proper responses and in an orderly and timely manner to correspondence to and from counsel and the plaintiffs.

Particulars

i) The defendant took over four months to commence work with Barrister McMillan

ii) The defendant took two months to furbish Barrister Raphael with instructions.

iii) The defendant took four months to act on the Saglimbeni judgement

iv) The defendant accepted, on behalf of the plaintiffs, a lapsing notice from the Land and Property Management Authority (LPMA) twelve days after she terminated her services from the plaintiffs and did not immediately forward the lapsing notice back to the LPMA, yet mailed it to the plaintiffs seven weeks later knowing quite well that the lapsing notice had a 21 day deadline.

v) The defendant accepted court documents from Barrister Ward, on behalf of the first plaintiff on the 30th November 2006, when she had terminated her services from the plaintiffs on 15 September 2006.

vi) The defendant, on several occasions made appointments with the plaintiffs and counsel and failed to come to these appointments costing the plaintiffs lost time and costs of counsel.

vii) The defendant failed to lodge the statement of claim from Barrister Anthony Rogers on behalf of the plaintiffs pertaining to Landcorp. (emphasis added)

74 In pleading terms, any failure of the Defendant to mention her brain surgery would at best be a particular of negligence in relation to something else. It cannot be a cause of action in itself. But in any event, the Plaintiffs would have to plead and demonstrate that the Defendant was under a duty of care to disclose these matters to them. In my opinion, no such duty of care existed.

75 The speculative nature of the matter is highlighted by the words that appear in paras 97 and 98(b) where it is said she "was or may have been functioning with a brain disability".

76 Further, during the course of argument concerning the matter of the purchase of the Rockdale unit it was asserted by the Plaintiffs that her medical condition from her brain tumour was a particular of malice. That was said to arise because she could not think straight and was illogical. These matters only have to be stated to be rejected.

77 I note in any event that alleged surgery was said to have taken place between 1999 and 2001. The Defendant acted for the Plaintiffs from 2005 to 2006. No particulars are provided of the Defendant's condition whether by reference to medical reports or otherwise. No particulars are provided for how her surgery and the brain tumour impacted on her behaviour in anything other than general assertions that could be alleged against any solicitor who is alleged to have breached his or her duty of care to the client.

78 The claim in these paragraphs are hopeless and should not be allowed to be repleaded.

(11) General claims

79 The Amended Statement of Claim pleads:

101. In the facts and circumstances pleaded in paragraphs 1 to 100 above the defendant breached her duty of care to the Plaintiffs by reason of:

a) her negligence, as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 1.

b) her incompetence as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 1.

c) her professional misconduct, as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 1.

d) her unsatisfactory professional conduct, as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 1.

e) her misrepresentation, and failed to act in an honest, fair, prompt and diligent manner as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 1.

f) her not providing the first and second plaintiffs with a cost agreement between herself and the plaintiffs, as per Legal Profession Act 2004 No 112 section 322.

g) her by not providing the first and second plaintiffs with a cost agreement between herself and prospective third parties, as per Legal Profession Act 2004 No 112 section 322.

102. On or about the 5th of August 2005 the defendant was forwarded documents, being the complete set of files from Mr Vasso Tsolakis of Tsolakis Solicitors via his repesenting solicitor Neville Clinch Long.

103. The defendant failed in her duty of care, displayed incompetence, negligence, professional misconduct and unsatisfactory professional conduct by reason of not keeping a safe custody register as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 14- (i),(ii),(iii) and (iv).

104. The defendant failed in her duty of care and displayed incompetence, negligence, professional misconduct and unsatisfactory professional conduct when she proceeded to treat the Tsolakis Files (Safe Custody Documents) as her own possession., and proceeded to mix and meld the Tsolakis files with her own working files, contrary to Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 14-(i),(ii),(iii) and (iv).

105. On or about July 2007 the defendant contacted, via email, the eldest brother of the first plaintiff and complained to him about alleged unpaid tax invoices of the first plaintiff to the defendant.

106. The defendant failed in her duty of care and displayed incompetence, negligence, professional misconduct and unsatisfactory professional conduct:

a) when she transmitted fiduciary details, among others to a third party not connected to the law practice as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 2.

b) by reason of proceeding to commence the recovery of legal costs from the plaintiffs prior to having given a bill to the plaintiffs in accordance with sections 332A section (4) and (5) (Bills) and 333 (Notification of client's rights), as per Legal Profession Act 2004 No 112.

c) by reason of proceeding to commence the recovery of legal costs from the plaintiffs prior to having given a signed bill to the plaintiffs in accordance with sections 332 section (2) (Bills) as per Legal Profession Act 2004 No 112.

d) by reason of proceeding to commence the recovery of legal costs from the plaintiffs prior to having given to the plaintiffs a notification of client's rights in accordance with sections 333 section (1) as per Legal Profession Act 2004 No 112.

e) by reason of terminating the retainer over the telephone and without just cause and without reasonable notice to the plaintiffs as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 5.1.3.

f) by reason of terminating the retainer without written notice and without seven days notice as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 5.2.1.

g) by reason of taking control of the plaintiffs documents (Original Tsolakis Files) left in her safekeeping , and subsequently claiming a lien without just cause whilst terminating the retainer without written notice and without seven days notice as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 8.3.3.

107. The defendant misled the plaintiffs and displayed professional negligence, professional incompetence, professional misconduct and unsatisfactory professional conduct. Particulars:

a) the defendant failed in her duty of care to sign her invoices as per the Legal Professions Act 2004 No112 section 33.2.

b) the defendant failed in her duty of care to include in her bill a Notification Of Clients Rights as per the Legal Professions Act 2004 No112 section 333.1

c) the defendant failed in her duty of care to issue interim bills as per the Legal Professions Act 2004 No112 section 334.1

d) the defendant had failed to pursue the matter against Tsolakis Solicitors, resulting in both unnecessary delays and incurring of costs that were not authorised by the plaintiffs.

e) the defendant had claimed a lien on the plaintiff's files when no accounts had been rendered. The defendant continues to maintain this position.

f) the defendant, on or about June to August 2007, sent, by way of electronic mail, details of outstanding accounts/monies to a relative of the first plaintiff as per contravention of as per Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) section 2.

g) the defendant had claimed a lien on the plaintiffs files when no accounts had been rendered. The defendant continues to maintain this position, which delayed or prevented the plaintiffs from lodging a statement of claim against Mr Tsolakis, solicitor.

108 The defendant engaged in misleading conduct, in contravention of the Fair Trading Act 1987 (N.S.W.).

Particulars:

a) Misleading the plaintiffs as to the purpose of the conference with Barrister McMillan as described above.

b) Misleading the plaintiffs as to the status and purpose of the documents prepared by Barrister McMillan as described above.

c) Misleading the plaintiffs as to the purpose of the conference with Barrister Raphael as described above.

d) Misleading the plaintiffs as to the status and purpose of the documents prepared by Barrister Raphael as described above.

e) Misleading the plaintiffs as to the purpose of the conference with Barrister O'Sullivan as described above.

f) Misleading the plaintiffs as to the status and purpose of the documents prepared by Barrister Anthony Rogers as described above.

g) Misleading the plaintiffs to believe they had sufficient protection by way of caveat against the first mortgagee. The said caveat placed on the 53 rd (sic) of January 2006 from Landcorp (NSW) Pty Ltd

h) Causing the plaintiffs to believe they had sufficient time to respond to the lapsing notice on the caveat from Samlo Pty Ltd

i) Misleading the plaintiffs into believing that the defendant was pursuing the plaintiffs claim for recovery of trust monies.

j) Misleading the plaintiffs into believing that the defendant was pursuing the first plaintiffs victims compensation claim.

k) Misleading the plaintiffs into believing that the defendant was pursuing the first plaintiffs accident insurance claim.

I) Misleading the plaintiffs into believing that the defendant was pursuing the first plaintiffs claim for recovery of judgement monies from Anthony Saglimbeni.

109. In the circumstances the defendant is liable to the plaintiffs for Incompetence, negligence, professional misconduct and unsatisfactory professional conduct, and misrepresentation and misleading conduct.

110. The Plaintiff claims damages by reasons of the negligence, breaches of retainer, breaches of of the Legal Professions Act 2004, the Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) and Fair Trading act 1987. and misleading conduct, negligence, professional misconduct, misrepresentation and and unsatisfactory professional conduct, set and out above.

80 I have omitted the Particulars under para 110 which gather the various matters that have been pleaded throughout the Amended Statement of Claim. They add other matters such as $1.3 million for pain and suffering "including but not limited to marriage separation" and $650,000 for "Bad Credit rating for both Plaintiffs".

81 As is apparent, most of this material appears to be a summary in general terms of earlier complaints but with particular emphasis on alleged breaches of the Legal Profession Act and the Solicitors' Rules.

82 It is clear that many of the matters within these paragraphs concern costs issues which are not appropriate to be included in any pleading in this Court.

83 Paragraph 108 contains particulars of what was said to be misleading conduct in contravention of the Fair Trading Act 1987. The particulars are a collection of the matters that have earlier been pleaded. The only ones that relate to claims that survive this judgment are (j) and (l). They should be linked to those claims. The remainder are struck out.

84 Paragraph 110 is a general paragraph claiming damages by reason of particular matters. The Plaintiffs are entitled to rely negligence, breaches of retainer and breaches of the Fair Trading Act 1987. No other matters may be pleaded in this paragraph.

Should the proceedings be dismissed?

85 I drew attention in para [2] above to what I said in my judgment of 16 June 2011 about the Plaintiffs being given one last opportunity to get their pleading into order. The Defendant submits that the Plaintiffs have had enough opportunities to get their pleading into order, and refer to matters mentioned in my earlier judgment. The Defendant says the proceedings should be dismissed.

86 Because I have taken the view that the 2 matters appearing as part of claim (2) are not on the face of the present pleading untenable or hopeless, but rather that as a matter of pleading they have not been properly set out, I consider that the Plaintiffs ought to have the opportunity to plead those claims properly.

87 Although this is, in the light of the history of the matter, a considerable indulgence to the Plaintiffs, I take into account that they are unrepresented. For reasons that are not apparent, and was never explained, it appears that the present Amended Statement of Claim was prepared by a barrister who has not appeared (for reasons that I do not know) to justify the pleading he or she has prepared. In coming to that view, I do not lose sight of what the High Court said in Aon , and I have in mind also ss 56 and 58 Civil Procedure Act 2005.

88 Any future Statement of Claim will, therefore, be confined to the claims that I have numbered as (2) above, being the claims discussed in paras 24 to 37 of this judgment. There are two separate claims relating to that matter, and they ought to be pleaded as such.

Pro bono assistance

89 The Plaintiffs have also applied for a referral to the Registrar for pro bono assistance pursuant to r 7.36 UCPR. In support of that application they have provided information about their assets, liabilities, income and expenditure.

90 That information discloses that the Plaintiffs not only own their own home at 17 Woodford Road, Rockdale but they own another property at 36-48 The Coronado, Old Erowal Bay, which is said to be worth $300,000. From one or other of those properties they receive rent of $1,200 per fortnight. In those circumstances I do not consider that the Plaintiffs can be considered as indigent to justify a referral for pro bono assistance.

91 I also take into account that the Plaintiffs have been able to secure the assistance of a barrister who drafted the pleading with which this judgment is concerned - that is a matter for consideration under sub-rule (2)(b).

92 I take into account that the causes of action, which I have permitted to be repleaded, do not appear to have high prospects of success.

93 Bearing in mind also what was said in Kelly v Mosman Municipal Council [2010] NSWCA 370 at [18]-[20] and Logan v Baird [2011] NSWCA 19 at [10], when the availability of barristers and solicitors who are prepared to give their time freely to provide pro bono assistance is not great, I do not consider it appropriate to make a reference in the light of these matters.

Conclusion

94 I make the following orders:

(1) I dismiss the Plaintiffs' Notice of Motion filed 30 June 2011.

(2) Any further application to file a Statement of Claim or an amended Statement of Claim is confined to the claims contained in section (2) this judgment.

(3) Any further application to amend the Statement of Claim is to be filed by no later than 4 October 2011. The Motion or any affidavit in support is to annex the proposed Statement of Claim. The Motion is to be returnable before me on 14 October 2011 at 2.00pm.

(4) If no such application is filed by 4 October 2011 the proceedings are dismissed with costs.

(5) The Plaintiffs' application for referral to the Registrar for pro bono assistance is refused.

(6) The Plaintiffs are to pay the costs of the Notice of Motion.

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Decision last updated: 02 September 2011