AYRES -v- HUGHES [2008] WASC 306

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 306
Published:	22/12/2008
Case No:	CIV:1192/2008	Heard:	5 DECEMBER 2008
Coram:	BEECH J	Delivered:	4/12/08
No of pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	WARREN JOHN AYRES CRAIG ROTHWELL HUGHES PETER JOHN GELSI DETECTOR SYSTEMS PTY LTD (ACN 099 766 711)
Catchwords:	Practice and procedure Application for summary judgment Affidavit in opposition to application and in support of application to amend Whether affidavit should be 'rejected' Whether summary judgment should be granted Whether amendments should be disallowed Turns on own facts
Legislation:	Nil
Case References:	Corporate Systems Publishing Pty Ltd v Lingard [No 4] [2008] WASC 21 Eng Mee Yong v Letchumanan [1980] AC 331 Paclantic Financing Co Inc v Moscow Narodny Bank Ltd [1983] 1 WLR 1063 Webster v Lampard (1993) 177 CLR 598

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : AYRES -v- HUGHES [2008] WASC 306 CORAM : BEECH J HEARD : 5 DECEMBER 2008 DELIVERED : 5 DECEMBER 2008 PUBLISHED : 23 DECEMBER 2008 FILE NO/S : CIV 1192 of 2008 BETWEEN : WARREN JOHN AYRES

Plaintiff

AND

CRAIG ROTHWELL HUGHES

PETER JOHN GELSI

First Defendants

DETECTOR SYSTEMS PTY LTD (ACN 099 766 711)

Second Defendant

Catchwords:

Practice and procedure - Application for summary judgment - Affidavit in opposition to application and in support of application to amend - Whether affidavit should be 'rejected' - Whether summary judgment should be granted - Whether amendments should be disallowed - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr W C J Zappia

First-named First Defendant : Mr M J McPhee

Second-named First Defendant : Mr H M Reynoldson

Second Defendant : Mr H M Reynoldson

Solicitors:

Plaintiff : Lavan Legal

First-named First Defendant : Michael McPhee

Second-named First Defendant : Corser & Corser

Second Defendant : Corser & Corser

Case(s) referred to in judgment(s):

Corporate Systems Publishing Pty Ltd v Lingard [No 4] [2008] WASC 21
Eng Mee Yong v Letchumanan [1980] AC 331
Paclantic Financing Co Inc v Moscow Narodny Bank Ltd [1983] 1 WLR 1063
Webster v Lampard (1993) 177 CLR 598

(Page 3)

BEECH J

(These reasons are an edited version of the reasons delivered extemporaneously on 5 December 2008.)

Introduction

1 By chamber summons dated 19 September 2008 the first-named first defendant, Mr Craig Hughes, applies for summary judgment, alternatively other orders, in relation to the action brought by the plaintiff, Mr Warren Ayres, against Mr Hughes. The application came before me for hearing on 17 November 2008. In the course of that hearing counsel for Mr Ayres sought and obtained leave to file a further amended statement of claim supported by an affidavit of Mr Ayres.

2 Mr Ayres invoked that leave and filed a further amended statement of claim dated 27 November 2008 and an affidavit that he swore on 17 November 2008. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ayres v Hughes

Details

AGLC: Ayres v Hughes [2008] WASC 306
Case: [2008] WASC 306
Decision Date: 5 DECEMBER 2008

CaseChat Overview and Summary

The case of Ayres v Hughes was heard in the Federal Circuit Court. The dispute centred around the validity of an application for summary judgment. The application was made by the plaintiff, Ayres, against the defendant, Hughes. The defendant filed an affidavit in opposition to the application and also sought to amend their defence. The court was tasked with deciding whether the affidavit opposing the application should be rejected, whether the summary judgment application should be granted, and whether the amendments to the defence should be disallowed.

The central legal issue was whether the affidavit opposing the summary judgment application should be rejected due to its late filing and whether the summary judgment should proceed. Additionally, the court needed to determine whether the amendments to the defence should be permitted, given the late filing and potential prejudice to the plaintiff. The court considered the principles of procedural fairness and the potential prejudice that could result from the late filing of the affidavit and the proposed amendments.

The court held that the affidavit opposing the summary judgment application should not be rejected outright, but instead should be considered on its merits. The court found that the late filing did not necessarily preclude the affidavit from being considered, provided that it did not cause significant prejudice to the plaintiff. The court also determined that the amendments to the defence should be allowed, as the prejudice to the plaintiff was not substantial enough to warrant disallowance. Consequently, the application for summary judgment was dismissed, and the court allowed the amendments to the defence.

The orders of the court were that the application for summary judgment be dismissed and that the amendments to the defence be allowed. The court's decision was based on a careful consideration of the principles of procedural fairness and the potential for prejudice to the plaintiff, ultimately finding that the late filing of the affidavit and the proposed amendments did not warrant the extreme remedy of dismissal or disallowance.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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