Antonio Mastronardo v Richard Tripodi

Category: Procedural rulings

Parties: Antonio Mastronardo (Plaintiff)
Richard Tripodi (Defendant)

Representation: Counsel:
P Morris SC (Defendant)
Solicitors:
Acme Consulting (Plaintiff)
Barry Nilsson (Defendant)

File Number(s): 2023/172793

Publication restriction: Nil

JUDGMENT

1. By further amended notice of motion dated 30 October 2025, the defendant, Mr Richard Tripodi, seeks an order that the plaintiff, Mr Antonio Mastronardo, provide further and better particulars of his amended statement of claim, together with other incidental orders. In the alternative, Mr Tripodi seeks to have the amended statement of claim struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) and the proceedings dismissed pursuant to rule 13.4 of the UCPR. Mr Tripodi also seeks the costs of the notice of motion.

2. Mr Mastronardo opposes the application.

3. To support the application, Mr Tripodi relies on an affidavit of Mr James Berg of 5 March 2024, Exhibit JDB-1 to that affidavit, the affidavit of Mr Berg dated 24 October 2024, Exhibit JDB-2 to that affidavit, the affidavit of Mr Berg dated 19 June 2025, the affidavit of Mr Berg dated 20 August 2025, the affidavit of Mr Berg dated 25 September 2025 and Exhibit JDB-3 to that affidavit.

4. Mr Mastronardo relies on his own affidavit, dated 3 November 2025.

Background, the amended statement of claim and the request for particulars

5. Mr Tripodi is and was at all material times a barrister. Mr Mastronardo was, at all material times, a party to an action in the Supreme Court of New South Wales (“the prior action”). It is alleged, in the amended statement of claim, that Mr Tripodi was engaged by Mr Mastronardo’s solicitors, to assist in the preparation of pleadings for Mr Mastronardo in the prior action.

6. The prior action arose in circumstances where property developers, including Mr Mastronardo, fell into financial difficulties in the context of the global financial crisis in 2008 to 2009 in circumstances where they had borrowed large sums from the Commonwealth Bank of Australia and BankWest to fund development projects.

7. Mr Tripodi worked full time on the prior action from 22 May 2019 until 10 September 2019, when his retainer was terminated. During that period of time, Mr Tripodi rendered a series of accounts, some of which were paid and some of which were not paid.

8. In early 2020, Mr Tripodi instituted proceedings in the Local Court against Mr Mastronardo’s solicitors, seeking the payment of his unpaid accounts.

9. On 7 February 2020, Mr Mastronardo’s solicitors, Tomaras Lawyers, filed an Application for Assessment of Costs in relation to other fees claimed by Mr Tripodi.

10. On 1 May 2020, Mr Mastronardo filed a statement of claim in the District Court (case number 2020/130595), naming Mr Tripodi as the defendant (“the first DC proceedings”). Mr Tripodi was not served until about 28 October 2020.

11. In the first DC proceedings, Mr Mastronardo claimed $251,570 being the sum of Mr Tripodi’s fees, the fees of Mr Bret Walker SC from whom Tomaras Lawyers and Mr Tripodi had sought advice, the legal fees said to have been paid to new counsel and unspecified damages for delay.

12. It was alleged, in the first DC proceedings, that work performed by Mr Tripodi:

was just wrong and incorrect and the pleadings he had prepared were of not [sic] utility.

13. Allegations of work having no utility were also made in both the costs assessment and the costs review.

14. The costs assessment was decided on 22 September 2020. The reasons for the decision are provided as part of Exhibit JDB-2 (CB p 97).

15. The costs assessor determined that Mr Tripodi’s fees should be reduced by $9,900, being the difference between the fees charged of $116,434, and the assessed fees at $106,534. Tomaras Lawyers were ordered to pay the costs of the costs assessment of $7,994.25 because the variance in the fees had been assessed at less than 10%. Tomaras Lawyers sought a review of the costs decision on or about 4 June 2021. The Review Panel affirmed the costs decision on 8 September 2021 and a certificate was issued to the parties on 23 November 2021.

16. Mr Tripodi’s action in the Local Court was heard over 22 October 2020, 22 February 2021 and 24 June 2021. Judgment was delivered in Mr Tripodi’s favour on 25 August 2021.

17. In October 2021, the first DC proceedings were dismissed for want of prosecution.

18. On 30 May 2023, Mr Mastronardo commenced the present action by the filing of a statement of claim (“the first statement of claim”) in very similar terms to the statement of claim in the first DC proceedings.

19. On 6 June 2024, the first statement of claim was struck out by order of Judge Andronos. Leave was given to Mr Mastronardo to replead his claim.

20. On 23 July 2024, Mr Mastronardo filed an amended statement of claim.

21. In his written submissions in relation to the further amended notice of motion the subject of this judgment, Mr Tripodi complains:

In the ASOC, amongst other things, the plaintiff:

(a) pleads that he and Carmelo Adrian Mastronardo (CAM) were or are defendants in the underlying case against the CBA – as such, it is not clear to the Barrister whether the plaintiff brings this case, in part, on behalf of CAM;

(b) references, at paragraph 9, the provision of 15 lever arch folders of documents to the Barrister his review and consideration – not surprisingly, the defendant no longer possesses those documents;

(c) pleads, at paragraph 13, that the view the Barrister came to regarding a proposed case theory was “incorrect”;

(d) pleads, at paragraph 22, written advice given by the Barrister was “just wrong and incorrect” with pleadings prepared being of “no utility”;

(e) pleads, at paragraph 25, that in purported performance of his retainer, the Barrister did advise and act for the plaintiff upon the preparation and drafting of pleadings as instructed;

(f) pleads, at paragraph 26, the Barrister failed to advise of matters pleaded above however it is not at all clear which is meant by “the matters pleaded above”;

(g) pleads allegations of breach in paragraph 28 however there is no specific conduct particularised so as to allow the Barrister to understand the case on breach he is required to meet;

(h) pleads, at paragraph 29, that because of the Barrister’s conduct the plaintiff’s case may be compromised however there is no particularisation of the alleged breaches that have compromised the plaintiff’s case, or how such case has been compromised; and

(i) pleads, at paragraph 32, alleged loss and damage however it is not clear to the Barrister:

(i) how alleged breaches of duty of care give rise to damages in the form of a refund of fees: or

(ii) how the plaintiff could be entitled to a refund of fees and damages equating to the costs the plaintiff incurred in relation to other lawyers.

22. In the amended statement of claim, Mr Mastronardo seeks, in summary:

23. A refund of all fees paid to Mr Tripodi,

24. Money paid to Mr Tripodi by Tomaras Lawyers (Mr Mastronardo’s solicitors) for outstanding invoices,

25. Reimbursement paid to Mr Bret Walker SC for a conference on pleadings,

26. Damages incurred as a result of having to brief new counsel and consequences suffered as a result of delays in preparing pleadings.

27. Consistent with timetabling orders made by the Court on 26 July 2024, by five page letter dated 31 July 2024, Mr Tripodi, through his solicitors, made a detailed request for particulars of the allegations in the amended statement of claim. In the letter, Mr Tripodi reserved his rights in relation to the amended statement of claim, saying that it “falls foul of pleading rules in a number of respects”.

28. The Court orders of 26 July 2024 required the plaintiff to respond to the request for further and better particulars by 23 August 2024. No particulars were provided. A further Court order was made on 27 September 2024 requiring that the plaintiff provide further and better particulars by 11 October 2024. Again, no particulars were provided. On 15 April 2025, the Court ordered that further and better particulars be provided by 24 April 2025. Again, no particulars were provided. On 22 August 2025, Judge Weber ordered, among other things (in summary):

29. The plaintiff to provide further and better particulars within 7 days [ie, by 20 August 2025]; and

30. In the event that the plaintiff fails to comply with order (1), order that:

(a) the proceedings are dismissed; and (b) the plaintiff pay the defendant’s costs of the proceedings.

25. By letter dated 29 August 2025, Mr Mastronardo responded, through his solicitors, Acme Consulting, to the request for particulars. The letter was emailed to Mr Tripodi’s solicitors, with an attachment which, when printed, comprised 17 lever arch folders of double-sided pages. It was submitted in Mr Tripodi’s case that none of these pages assisted in articulating the case that Mr Tripodi is to meet.

26. The defendant submits that the purported particulars do not assist in the understanding of the case the plaintiff has pleaded, and do not cure the defective amended statement of claim.

27. The plaintiff submitted that the documents in the attachment to the letter of 29 August 2025 were not “just shoved into a file and sent across”. Rather, “each of the files that were in the file were numbered specifically to each of the paragraphs. Although there was no index, they were specific to each of the requests for particulars, and each of the responses to particulars in the plaintiff’s letter of 29 August 2025 sets out responses and refers to those files”.

28. In oral submission, an example of the approach was given:

The amended statement of claim sets out that the plaintiff claims damages and losses for the defendant's negligence, for ‑ the work that was done that was unsustainable, and that the work that was done was of no utility. In my submissions, I refer to a refund, but that should be read in the context of the losses and damages suffered by virtue of the negligence or, at least, the work that was done by Mr Tripodi, which was of no utility, was rendered useless and could not have been able to be propounded in any way.

On that point, I submit that the document that I wanted to tender is a memorandum that was prepared by Mr Tripodi, prior to one of the meetings he had with Bret Walker, in which he specifically says that‑‑

HER HONOUR: You're now giving evidence from the bar table, which is making me very uncomfortable. It's not for me to decide the claim. I'm just focusing on the pleadings and whether or not they can be pleaded to. In the particulars, where do you refer to this piece of evidence that you now wish to‑‑

TOMARAS: Your Honour, the particulars ‑ if I could just have a moment.

HER HONOUR: I assume your underlying point is that the method by which you gave particulars is sufficient to make out the claim of negligence, on account of the content of this document.

TOMARAS: Yes, your Honour.

HER HONOUR: Where in the particulars is that made clear?

TOMARAS: On p 211 of the court book, at para 10, being the request for particulars. At para 10, in relation to para 13 of the amended statement of claim, which is court book 6, it says:

"The defendant came to the view, which was incorrect, that the only possible way forward with merit was the redrafting of the cross‑claims as a statutorily unconscionable claim, attacking or varying the relevant facilities, transactions with the Commonwealth Bank, and the plaintiff never accepted this course of action because they weren't consulted."

Then we go back to court book 211. The question is at para 10.1, "Please particularise the facts, matters, circumstances upon which the plaintiff relies for making the allegation that the defendant came of the view" ‑ and then, 10.2, it says, "Please provide copies of all documents evidencing this fact and how it was conveyed", and then, 10.3, "It is alleged the plaintiff rejected that view."

HER HONOUR: That's the request for particulars.

TOMARAS: Yes, that's the request. The response is at p 217, at para 10.1, "The matter ‑ for evidence ‑ where the plaintiff came to the view, when it was evident from meetings with Bret Walker, Deborah Pritchard ‑ furthermore, the memo prepared by the defendant provided to Bret Walker ‑ see attached file." In that file, under the file that says, "Paragraph 10", is attached this document, other relevant documents. If we just go to, I think, court book 220, it says there, "See the link to the attachments." That's an email from myself, the plaintiff's solicitor, to the defendant's solicitor, attaching the response to particulars. Then, further down, the third paragraph says, "See link to attachments." Then, I think, court book 222, I think, is just a ‑ I think ‑ it might be ‑ it's just a snapshot of what's on that OneDrive; it looks like it's only just part of that. This document, together with other documents and emails, sets out ‑ and gives this memorandum which is attached to that.

In addition, at court book 30, your Honour, paras 8.7 and 8.8 ‑ sorry, I should have said, this document starts at court book 19, which is the costs assessor's certificate of determination, dated 22 September 2020; so these are the reasons. Then, if we go to court book 30, paras 8.7 and 8.8, there's the letter ‑ I can just read that out or‑‑

HER HONOUR: I can read it.

TOMARAS: Yes. So it is on those paragraphs ‑ where I've taken your Honour

is that ‑ the basis for my client's pleading that refers to the legal work or the services that were provided by Mr Tripodi, or the defendant, that they were abandoned, they were not used, during the course of those five or six months, none of those pleadings and any of the work that he undertook continued on, and that's when we make that claim and the invoices and so forth that relate to the claim that we make in the amended statement of claim are all invoices and works relating to fixing ‑ or, at least, moving away from the pleaded documents that Mr Tripodi, the defendant, did but that were never used. We say that that resulted in the damages and losses that we say covered‑‑

HER HONOUR: Can you see that the missing link is an allegation of negligence, properly made?

TOMARAS: Yes, your Honour.

HER HONOUR: You see that link is missing?

TOMARAS: Yes, I understand that, your Honour, and ‑ given the submissions made by Mr Morris and the view of the pleadings ‑ they're ones that can be amended to take that into account. We say that it's ‑ I concede, your Honour, that that's something that needs to be better articulated to take into account what I've just said.

29. The allegations in the statement of claim simply are not, as they stand, allegations of negligence. For example, the allegation “overcharged pursuant to your costs agreement”, even if proven, does not necessarily constitute negligence and the amended statement of claim does not set out in what way it is alleged to do so.

30. It is asserted, in the statement of claim, that an application was made in prior proceedings which was “unnecessary”, that “baseless causes of action” were “pleaded without any reasonable prospects of success”, and that there was “unnecessary delay”. It is pleaded that pleadings prepared in the prior action were “of no utility”. The factual basis upon which these assertions are made and how it is said that they constitute negligence on the part of Mr Tripodi is not elucidated.

31. In the letter of 29 August 2025, it is repeatedly asserted that the requests for particulars are a matter for evidence. Documents in the attachment are repeatedly simply referred to, without explanation. The letter of 29 August 2025 does not actually provide any particulars. At the end of the process, no clear allegation of negligence has been conveyed to Mr Tripodi and it is not possible for him to join issue properly in a defence with the allegations in the statement of claim, which rise no higher than a mention of a possible cause of action.

32. The amended statement of claim cites s 5A of the Civil Liability Act 2002 (NSW), which is in Part 1A of the Act and says:

5A Application of Part

(1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

However, the amended statement of claim does not then address the elements of negligence which are set out in Part 1A of the Act.

33. The amended statement of claim does not set out the link between the damage or loss pleaded and conduct on the part of Mr Tripodi constituting a cause of action.

Relevant principles

34. The UCPR provides, in r 15.1:

15.1 Pleadings must give all necessary particulars

(1) Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.

(2) Subrule (1) does not require a pleading to give particulars of any claim for interest up to judgment other than those required by rule 6.12(7).

35. The amended statement of claim does not comply with r 15.1 of the UCPR.

36. In H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 (‘H 1976 Nominees’), Northrop J said, at p 186-187:

18. … In order to disclose a reasonable cause of action, a statement of claim must contain statements of material facts which support the claims made. Particulars are not statements of material facts; particulars perform a different purpose. The distinction is made clear in Bruce v. Odhams Press Ltd. (1) per Scott L.J.: "The cardinal provision in r. 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' fact is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology, and in the new is liable to be 'struck out' under Order XXV., r. 4: see Philipps v. Philipps (2); or 'a further and better statement of claim' may be ordered under Order XIX., r. 7. (at p246)

19. The function of 'particulars' under r. 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a 'material fact' and a 'particular' piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of the things there is often overlapping And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them" (1936) 1 KB, at pp 712-713 (at p247)

37. In Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Mason CJ and Gaudron J said, at [18]:

18. The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In Liquidation) [1916] HCA 81; (1916) 22 CLR 490, per Isaacs and Rich JJ. at p 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness.

38. In Dickens v State of New South Wales (No.3) [2018] NSWSC 485 (‘Dickens”) at [38], Adamson J said:

38. Where a statement of claim is deficient, in that it does not identify the connection between allegations of fact and causes of action alleged; contains a discursive narrative, the relevance of which can only be the subject of conjecture; and makes generalised allegations which could not sensibly be the subject of a response in the defence, it cannot be allowed to stand, if objection is taken.

Summary and Conclusion

39. The letter of 29 August 2025 does not provide a proper response to the request for particulars of 31 July 2024.

40. In any event, the defects in the amended statement of claim are fundamental and could not be cured by the provision of particulars. The amended statement of claim does not disclose a reasonable cause of action against Mr Tripodi in the sense described by Northrop J in H 1976 Nominees Pty Ltd. The amended statement of claim is defective in the manner described by Adamson J in Dickens.

41. The UCPR provide, in r 14.28:

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

42. The amended statement of claim discloses no reasonable cause of action.

43. As I have said, above, Mr Mastronardo filed his first statement of claim in relation to part of the subject matter of these proceedings on 1 May 2020. That statement of claim was dismissed in October of 2021. The first statement of claim in the present action was filed on 30 May 2023. It was struck out on 6 June 2024. The amended statement of claim was filed on 23 July 2024. Particulars were sought on 31 July 2024. Three orders requiring the provision of particulars were not complied with by Mr Mastronardo. A letter was provided after a fourth order, more than a year after the request for particulars, but rather than engaging with the detailed request for particulars, a vast volume of documents was produced and cross-referenced, to some extent, with the request for particulars, without explanation. The letter of 29 August 2025 was not appropriately responsive to the request for particulars.

44. In any event, the problem is more fundamental than a lack of particulars. The statement of claim presently does not plead a cause of action against Mr Tripodi. It asserts negligence without alleging the conduct complained of and setting out how that conduct constitutes negligence. The link between the relief sought and the assertion of negligence is not pleaded.

45. Given the extensive history of this matter, and the fact that the plaintiff has had many indications, over the last five years, of the deficiencies in the various pleadings, the appropriate course, bearing in mind ss 56 – 58 of the Civil Procedure Act 2005 (NSW), is to strike out the amended statement of claim under r 14.28.

46. The UCPR provides, in r 13.4(1):

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

47. In all of the circumstances, the appropriate order is that the proceedings be dismissed.

48. The following orders will issue:

49. The amended statement of claim filed on 23 July 2024 is hereby struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

50. These proceedings are dismissed pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).

**********