Conridge v Flammia [2013] NSWSC 498

The lender had brought proceedings against two solicitors arising out of a loan and mortgage transaction. The borrower had defaulted on the loan, but the lender had not been able to enforce the mortgages as they had been forged. He had been unsuccessful in proceedings against the third party mortgagor and had then brought proceedings against the solicitor that had represented him in the transaction, and the person who had represented himself as solicitor for the borrower.

The solicitors asked the court to dismiss the proceedings because the lender had brought the proceedings in his own name only, whereas the loan and mortgage had been jointly in the name of he and his wife. The solicitors argued that the Uniform Civil Procedure Rules stated that any party that is jointly entitled to relief must be joined as a party. They argued that the lender had deliberately not joined his wife and therefore the claim should be struck out and the proceedings should be dismissed immediately.

The position was complicated by the fact that the proceedings were commenced on the last day before the statute of limitations expired. If the proceedings were struck out, it would mean that the lender could not make any claim against the solicitors.

The purpose of the rule about joining parties entitled to the same relief is to protect a defendant against the risk of multiple proceedings – it is a rule about procedure, not substantive law.

The judge did not find that the lender had deliberately not complied with the rule, but rather that he believed his ex-wife had legally assigned her interest in the case to him in their divorce settlement and she did not want to be joined as a party. Further, all the parties agreed there was no concern that the wife would sue the solicitors herself, especially as her claim was now statute-barred.

The judge was not persuaded to dismiss the proceedings. Instead Her Honour made an order that in the circumstances the wife is not to be joined as a party in the lender husband’s claim. Costs were awarded to the lender.

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