Michael v Stewart t/as Stewart & Associates Solicitors and Barristers

Solicitors: Evangelos Patakas & Associates (Plaintiff) K&L Gates (Defendant) File Number(s): 2020/00221712

reasons for decision

1. By summons filed on 29 July 2020, Jason Michael ("the plaintiff") seeks an order pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) ("the Act") that proceedings 2019/45423 in the District Court be transferred to this Court.
2. At the hearing of the matter on 30 September 2020, the defendant, Andrew Stewart t/as Stewart & Associates Solicitors and Barristers, by his solicitor, did not oppose the application although sought to clarify various factual matters and was heard as to costs.
3. The Court made the following orders: 1. Order pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) that the proceedings brought by the plaintiff against the defendant in the District Court of New South Wales, being proceeding number 2019/45423, be transferred to the Supreme Court of New South Wales. 2. The costs of the Summons, filed by the plaintiff on 29 July 2020 in these proceedings, be reserved.
4. These are the Court's reasons for decision.
5. The present application is supported by an affidavit sworn on 29 July 2020 by the plaintiff's solicitor, Mr Patakas. His evidence, in summary, is to the following effect: 1. The plaintiff claims that the defendant, Mr Stewart, acted as his solicitor to advise and prepare documents in respect of a loan in the sum of $100,000 to Mr Bert and Mrs Diane Mendelsohn on about 7 February 2013 ("the loan"), which was to be secured by a second mortgage over Mrs Mendelsohn's property at Double Bay ("the Double Bay Property"). 2. The defendant prepared, inter alia, a loan agreement dated 7 February 2013 ("the loan agreement"). 3. The Mendelsohns defaulted in repaying the Loan and all interest thereon, which as at 18 January 2019 totalled $179,197.50. 4. From late 2018, Mr Stewart acted as the plaintiff's solicitor for the purpose of bringing proceeding to recover the Loan ("the Mendelsohn Proceedings"). 5. On 18 January 2019, Mr Stewart commenced the Mendelsohn Proceeding by filing pleadings in the District Court against the estate of the late Mr Mendelsohn and against Mrs Mendelsohn. 6. On 7 February 2019, being exactly six years after the date of the Loan Agreement, the plaintiff, acting for himself, filed a claim against Mr Stewart, alleging professional negligence ("the Stewart Proceedings"). 7. Both parties in the Stewart Proceedings filed applications which were heard by Acting Judge Curtis on 5 July 2019. The Stewart Proceedings were stood over to the inactive list 8. The pleadings in the Mendelsohn Proceedings were amended to insert a claim that Mrs Mendelsohn had agreed to give a charge over the Double Bay Property; and because specific performance of that obligation could only be ordered by the Supreme Court, the Mendelsohn Proceedings were transferred to this Court.