Thursday 26 November 2015

Last chance for Amirbeaggi negligence claim

CYNICS might see irony in a solicitor complaining about the "anxiety, distraction and disruption that litigation causes". Facilitating the workings of justice provides plenty of scope for misery to be visited upon those caught in the cogs of the law - and sufferers are almost invariably the legal profession's clients.

This time though Sydney solicitor Farshad Amirbeaggi is the one enmeshed, thanks to a professional negligence action launched by an aggrieved developer.

The main problem is that whilst the $2.7 million claim was launched in February this year, the plaintiff has since provided little in the way of propulsion.

Six deadlines have passed without the promised or ordered amended statement of claim materialising. The plaintiff - who has the misfortune to be one of the parties mired in the Joe & Joe Developments imbroglio - complains he has insufficient funds to advance the action. Amirbeaggi, who is vexed by the claim and its attendant publicity, wants the proceedings dismissed.

In a judgment published on Tuesday Supreme Court Justice Ian Harrison quoted Amirbeaggi's complaint about the "anxiety, distraction and disruption" in ruling that while it would not be appropriate to dismiss the claim, the plaintiffs should pay Amirbeaggi's costs, which the judge observed were not at this stage onerous. He also expressed a  degree of skepticism about the plaintiff's avowed poverty as the reason for the action's sluggish progress.

"There can be no doubt that the plaintiffs have disregarded orders with which they would have been expected to comply," Justice Harrison said.

"I am less certain that their failure to do so is the result of financial considerations that have disrupted their ability to secure appropriate legal assistance. The evidence about that is unsatisfactory as the defendants have emphasised," Justice Harrison said.

The plaintiff's lawyer, David Sweeney of Sweeney Tiggemann, might bristle at that observation about "appropriate legal assistance". It's possible however that his client - developer Joseph Kossaifi - is unable to throw more money at lawyers and litigation given the history of Joe & Joe Developments and the torturously slow progress of the Scotts Schedule which Justice Ashley Black ordered in December 2014 be commenced.

That order related to $709,891.10 in legal fees paid to Etienne Lawyers by Richard Albarran and Blair Pleash of Hall Chadwick in their capacity as deed administrators of Joe & Joe Developments, which has been subject to a Deed of Company Arrangement (DoCA) since March 2009 and the subject of bitter and costly litigation. Amirbeaggi introduced the Kossaifis to Hall Chadwick in 2009, when the Kossaifis were looking to settle their dispute with Joe & Joe's other shareholder through a wind up and liquidation. 

It's Joe Kossaifi's contention that Amirbeaggi mismanaged the shareholder dispute that arose between his family and the Elias family, who were the Kossaif's corporate business associates, concerning the identification and distribution of the assets of Joe and Joe Developments.

In seeking to have Kossaifi's claim dismissed, Amirbeaggi listed 10 reasons, including the fact that Joe Kossaifi has breached three court orders requiring him to file an amended statement of claim; that many of the aspects of the claim may be statute barred and that the affidavits provided by Kossaifi and his lawyer don't adequately explain the reasons for the delay. 

Amirbeaggi's final reason justifying an order for dismissal - "There can be no suggestion that the defendants are in any way at fault", prompted Justice Harrison to observe: "the last of those propositions is very much in contest".

SiN offered both sides opportunities to provide comment for this story but neither replied by the deadline.

Justice Harrison ordered Kossaifi to serve Amirbeaggi with any proposed amended statement of claim by no later than 4.00pm on Friday 5 February 2016 and ordered him to pay Amirbeaggi's costs to date. The proceedings were adjourned until February 12, 2016.

Further reading:

Kossaifi v ACN 111 804 383 Pty Ltd [2015] NSWSC 1743

Joe & Joe solicitor sued for $2.9 million

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