Australia, March 12 -- New South Wales Land and Environment Court issued text of the following judgement on Feb. 13:

1. The Statement of Claim in this matter was filed by Mr Robert Byrne on 31 May 2024. A Notice of Motion was filed by the first defendant (Turner Freeman) on 2 September 2024 and a Notice of Motion was filed by the second defendant (Mr Casselden SC) on 10 September 2024. Both Notices of Motion sought the following orders:

1. Pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 14.28, the Statement of Claim filed 31 May 2024 (the Statement of Claim) be struck out.

2. Alternatively to prayer 1, pursuant to UCPR r 14.28, paragraphs 8, 9, 12, 17, 23, 24, 25 and 27 of the Statement of Claim be struck out.

3. Pursuant to UCPR r 13.4(1)(b) the proceedings be dismissed.

4. Costs.

5. Such further or other orders as the court considers ought to be made.

2. At the hearing of the Notices of Motion, Turner Freeman and Mr Casselden relied upon an affidavit of Mr Baron Alder dated 2 September 2024 ("Mr Alder's affidavit") and an affidavit of Mr Gabriel Hernandez dated 13 September 2024 ("Mr Hernandez's affidavit") which was filed in Mr Byrne's case.

3. At the hearing, Mr Scott objected to the tendering of Mr Alder's affidavit on the basis of relevance. I ruled that I would consider both of the affidavits relied upon because their content and attachments were obviously relevant to the issues raised on the Notices of Motion, in ways which will become obvious below. I bear in mind the oft-quoted words of Kirby P (as he then was) in Wickstead v Browne (1992) 30 NSWLR 1 at pp 5 - 6:

Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle.

The allegations in the Statement of Claim

4. The following allegations are made in the Statement of Claim:

1. Turner Freeman and Mr Casselden acted for Mr Byrne in proceedings in 2014 ("the 2014 proceedings").

2. A mediation was held in the 2014 proceedings on 31 May 2018. Turner Freeman and Mr Casselden represented Mr Byrne at the mediation. During the mediation, Mr Byrne signed two documents: a "Heads of Agreement" and a "Settlement Authority".

3. Turner Freeman and Mr Casselden had a duty to take reasonable care when advising him "about the proposed terms of settlement recorded in the heads of agreement". This duty of care required both Turner Freeman and Mr Casselden to advise Mr Byrne "about his rights should the defendant to the 2014 proceedings (the Owners Corporation) fail to perform its obligations in sufficient time to keep the hearing date of the trial, before Mr Byrne signed the document". In breach of their duty of care, Turner Freeman and Mr Casselden failed to so advise Mr Byrne.

4. Had Mr Byrne been advised (paragraph 10):

... about his rights should the Owners Corporation fail to perform its obligations in sufficient time to keep the hearing date of the trial, then Mr Byrne would not have given instructions to settle "in those terms" but would have instead instructed the plaintiff's lawyers to negotiate appropriate amendments to ensure all rectification work was done before trial and without losing the right to go to trial and obtain judgment if necessary, failing which the matter would not have settled and instead proceed to trial.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/194af78370723f78af719801)

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