Anthony Murdaca v Vincent Pizzinga

INTRODUCTION 1Before the court for determination is a notice of motion filed by the defendant on 14 May 2012. Although the notice of motion contains a number of prayers for relief, the orders sought in the hearing before me were limited to those set out in paragraphs (1), (2) and (3) which were in the following terms: (1)that the proceedings be dismissed pursuant to r 13.4 of Uniform Civil Procedure Rules 2005 ("the rules"); (2)alternatively to order (1), an order that summary judgment be given in favour of the defendant pursuant to the inherent jurisdiction of the court; (3)alternatively to orders (1) and (2), an order that the statement of claim be struck out pursuant to r 14.28 of the rules. 2The plaintiff opposes the making of the orders sought. THE PRINCIPAL PROCEEDINGS 3The defendant is the plaintiff's former solicitor. By a statement of claim filed on 14 November 2011, the plaintiff seeks damages arising out of the defendant's representation of the plaintiff in proceedings which were brought against him in this court in 1988. 4The statement of claim was prepared by the plaintiff without legal assistance. As a consequence, and without wishing to be unduly critical of the plaintiff, it is inelegantly pleaded and contains a number of assertions which would seem to be irrelevant. However, for present purposes the nature of the plaintiff's case may be summarised as follows. 5In or about 1996, the plaintiff granted a mortgage over a property at Moorebank in order to obtain finance to undertake a property development involving the construction of a number of townhouses. It appears that the plaintiff subsequently defaulted under the terms of the mortgage, resulting in the mortgagee commencing proceedings against him in this court seeking orders for (inter alia) possession of the property over which the mortgage was held ("the possession proceedings"). The defendant acted for the plaintiff in the possession proceedings. 6On 18 May 1998 orders were made in the possession proceedings, including an order that the mortgagee have leave to issue a writ of possession. In this regard, paragraph (13) of the statement of claim is pleaded in the following terms: "The defendant acted illegitimately and carelessly in a court appearance when he misled the parties and the court to believe that the plaintiff was consensual (sic) to the court orders made on 18-05-98. The orders were to the detriment of the plaintiff and favourable to the mortgagee and to the interests of a third party who want to buy the development in lot (7)." 7Paragraph (14) of the statement of claim pleads that the making of those consent orders was without instructions and that this "caused the plaintiff to suffer shock and trauma at the time when the sheriff entered his home / property with the writ of possession". The statement of claim goes on to plead, at various stages, that the plaintiff was "badly advised and deceived by the defendant" and that the defendant's conduct was "illegal and malicious". 8The statement of claim then pleads (at paragraph (17)) that it was not until 8 June 2011 that the plaintiff became aware of the consent orders which had been made in 1998 and (at paragraph (19)) that the negligence of the defendant in 1998 caused an impairment of the plaintiff's health which was said to have been brought about by the "humiliation and loss of self-respect in seeing (the plaintiff's) project being completed by someone else in 1999". The suggestion that the plaintiff was aware, as early as 1999, that the development was being completed by some person other than himself does not sit entirely comfortably with the proposition that he did not become aware of the consent orders made in the possession proceedings until June 2011. 9The relief which is claimed by the plaintiff in the statement of claim is twofold, namely: (a)an order that the defendant pay "compensatory damages" for causing mental and physical injury to the plaintiff; and (b)an order that the defendant "compensate the plaintiff for suffering the financial loss" which is pleaded in the statement of claim, such financial loss allegedly arising from the fact that the plaintiff lost the opportunity to complete the development. 10An amended defence was filed on 24 July 2012. That defence places squarely in issue the allegation that the defendant acted negligently in respect of the making of the orders of 18 May 1998, and pleads that such orders were made on the express instructions of the plaintiff. Moreover, the amended defence raises a number of specific defences to the plaintiff's cause of action, including an assertion that it is statute barred having regard to the provisions of the Limitation Act 1999. It is not necessary, for present purposes, to further detail the other issues which are raised by the amended defence. THE EVIDENCE ON THE HEARING OF THE MOTION 11The defendant read, without objection, paragraphs (1) and (2) of the affidavit of Melissa Fenton 4 June 2012, along with a further affidavit of Ms Fenton sworn on 3 September 2012. 12The plaintiff tendered two documents (which became exhibit 1), being a letter from the plaintiff to a Mr Porter of 28 November 2011, along with Mr Porter's reply of 23 December 2011. In addition, the plaintiff read (without objection) his affidavit of 29 August 2012 along with his affidavit of 24 September 2012. Each of those affidavits was lengthy and I have referred further below to those particular parts to which the court was taken for the purposes of the hearing of the motion. THE RELEVANT FACTS 13The affidavit material to which I have referred establishes the following facts which are relevant to the determination of the motion. 14On 29 September 2006, a sequestration order was made against the plaintiff in the Federal Court of Australia. Ian Charles Francis and Jason Lloyd Porter were appointed trustees of the plaintiff's estate. The plaintiff was discharged from bankruptcy on 27 October 2009 (annexure "A" to the affidavit of Ms Fenton sworn 4 June 2012) 15On 28 November 2011 the plaintiff wrote to Mr Porter (part of exhibit 1) in the following terms: Please find enclosed a copy of my statement of claim filed in the Supreme Court File No. 2011/362962 and please inform me of the following: 1.Do you have an interest in the financial loss part of my claim and if so, what is the amount that you require from any compensation amount if awarded in my favour for my financial loss? 2.Should you be added as a party to the proceeding? 3.What is the procedure in having the financial loss part of my claim assigned to myself? 16On 23 December 2011, Mr Porter responded (part of exhibit 1): I refer to your letter dated 28 November 2011. I confirm the following:- 1.I have no interest in the proceedings; 2.I should not be added as a party to the proceedings; and 3.Your claim appears to be compensation in relation to a personal injury claim and thus is not divisible amongst the creditors pursuant to section 116(2)(g) of the Bankruptcy Act 1966. Accordingly, there is no claim vesting in me to assign to you. 17On 16 July 2012 the plaintiff again wrote to Mr Porter (Annexure "G" to the plaintiff's affidavit of 29 August 2012) as follows: As you know, I am the plaintiff in the Supreme Court proceedings No. 2011/362962. I confirm that I previously provided to you with (sic) a copy of my statement of claim herein and you indicated that you did not consider that the right to sue had vested in you in your capacity as my former trustee because of the personal injury of the proceedings: see you letter dated 13 December 2011. Notwithstanding your letter, an issue has arisen as to whether I am entitled to bring the proceedings referred to above. This is in part due to the non-personal injury aspects of my claim. Therefore I respectfully request that you execute the attached deed which merely seeks to confirm that no chose in action to sue is vested in you. I enclose a deed executed by me and ask that you execute the same and return it to me as soon as possible. 18The Deed which was referred to in the plaintiff's letter (which is annexure "H" to the same affidavit) recited the fact that Mr Porter was the plaintiff's former trustee, that he had perused and considered the statement of claim filed by the plaintiff, and that he at no stage claimed any interest in the proceedings. The deed then purported to confirm: (a) the assignment, by Mr Porter to the plaintiff, of "all interests in the proceedings (if any)"; and (b) that such assignment was to "take effect as of the discharge of the bankruptcy". 19The plaintiff then forwarded an email to Mr Porter on 7 August 2012 (annexure "I" to the plaintiff's affidavit of 29 August 2012) which was in the following terms: Please find attached my letter to you dated 16-07-2012; please inform in the near future if you intend to execute the Deed of assignment. 20On 31 August 2012, Mr Porter responded to the plaintiff (part of annexure "A" to the affidavit of Ms Fenton sworn on 3 September 2012) in (inter alia) the following terms: "I reaffirm my previous position that I have no interest in these proceedings. You have demanded that I sign the proposed Deed enclosed with your letter. Your letter states that the proposed Deed 'merely seeks to confirm that no chose in action to sue vested in you'. However, clause 1 of your proposed Deed states 'Jason Porter hereby assigns all interests in the proceedings (if any) to Anthony Murdaca'. Clearly your letter and proposed Deed are contradictory. For the avoidance of doubt, I do not agree with your proposed Deed, nor will I be signing it. You were discharged from bankruptcy on 27 October 2009, some three years, ago, and commenced these proceedings in 2011. I advised you on 23 December 2011 that I had no interest in these proceedings and I made it clear that I did not assign a vested action to you (if any exists). My position has not changed. If you believe that you have a personal injury claim, then that is entirely a matter for you. There is no benefit to you (sic) bankrupt estate and creditors generally". 21On the same day, Mr Porter wrote to Ms Fenton (part of Annexure "A" to Ms Fenton's affidavit sworn on 3 September 2012) in (inter alia) the following terms: "In respect of Mr Murdaca's claim that my letter dated 23 December 2011 amounts to an assignment of the chose in action back to him. I deny this claim and do not interpret it as an assignment. If any action has vested, it has not been assigned to Mr Murdaca. I confirm that I have received a letter and proposed Deed from Mr Murdaca dated 16 July 2011 demanding that I execute same. I advise that I have not executed the Deed, nor do I intend to do so". 22On 20 July 2012 Dr Yolanda Lucire, a Forensic Psychiatrist, examined the plaintiff for the purposes of assessing the plaintiff's mental state between 1997 and 2012. Dr Lucire subsequently provided a report dated 17 August 2012 (annexure "A" to the plaintiff's affidavit of 29 August 2012). Counsel for the plaintiff took me, in particular, to that part of the report which appeared under the heading "Summary of opinion" in which Dr Lucire reported that in her opinion, the plaintiff: (a)was, in the 12 month period leading up to the commencement of the possession proceedings on 28 January 1988, suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which may have been the direct result of a car accident in which he had been involved; (b)was, at the date of the making of the sequestration order, anxious and agitated, and sought treatment from a Dr Noonan; (c)had been consistently receiving psychiatric attention for depression and anxiety from a number of psychiatrists; (d)took medication which did not assist him up until 2000, at which time he ceased that medication and changed medical practitioners; (e)remained, at the time of examination in July 2012, agitated, "a bit" cognitively impaired, and suffering from difficulties with memory and concentration secondary to anxiety; and (f)had experienced misfortune in his life which had resulted in chronic unhappiness and depression. 23Although not formally part of the affidavit evidence, reference was also made by counsel for the defendant (in the context more fully set out below) to the fact that between 2005 and 2008 the plaintiff pursued proceedings against various entities in this court as well as the Local Court, the Federal Magistrates Court (as it was then known), the Federal Court of Australia and the High Court. In this context, reference was made to decisions in Murdaca v Accounts Control Management Services Pty Ltd [2006] NSWSC 68; Murdaca v Accounts Control Management Services Pty Ltd [2006] FMCA 1687; Murdaca v Accounts Control Management Services Pty Limited [2007] FCA 577; Murdaca v RAMS Mortgage Corporation Pty Ltd [2007] NSWSC 512; Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 964; and Murdaca v Accounts Control Management Services Pty Ltd [2008] HCA Trans 101. THE ISSUES FOR DETERMINATION ON THE MOTION 24The parties agreed that three issues arose for determination on the notice of motion. They are as follows: (a) did the plaintiff's right to bring proceedings against the defendant vest in his trustee as at the date of his bankruptcy? ("the first issue"); (b) if so, did that right "re-vest" in the plaintiff at the time of his discharge from bankruptcy by virtue of an assignment of it from the plaintiff's trustee? ("the second issue"); and (c) to the extent that the plaintiff seeks damages for personal injury, is that claim one which is unrelated to his property or estate, and therefore maintainable? ("the third issue").