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Burns v Ingram

Burns v Ingram

Case [2012] NSWSC 418 17 May 2012

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Burns v Ingram [2012] NSWSC 418
Hearing dates: 30 April 2012; 9 May 2012
Decision date: 17 May 2012
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
Order that the Defendant's Notice of Motion is dismissed with costs.

Catchwords: Notice of Motion filed by the Defendant seeking summary dismissal and/or striking out of the proceedings as constituting an abuse of process or, in the alternative, permanently staying them - Costs order also sought - The Plaintiff denies the Defendant's entitlement to such relief
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Fair Trading Act 1987
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Supreme Court Act 1970
Trade Practices Act 1974
Uniform Civil Procedure Rules 2005
Cases Cited: AWB Limited No 10, Re [2009] VSC 566; (2009) 76 ACSR 181
Bradford & Bingley Building Society v Seddon & Ors 1999] 1 WLR 1482; [1999] EWCA Civ 944
Bracks v Smyth-Kirk [2009] NSWCA 401
Bracks v Smyth-Kirk [2010] HCATrans 145
Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1
Burns v Grevler [2010] NSWSC 1219
C G Maloney Pty Ltd v Noon [2011] NSWCA 397
Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245
Charben Haulage Pty Ltd (in liq) V Beilby [2010] NSWSC 510
Equuscorp Pty Ltd v Acehand Pty Ltd [2010] VSC 89
George v Webb & Ors [2011] NSWSC 1608
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Henry v Brookfields [2007] NZHC 265
Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Limited [2009] HCA 43; (2009) 239 CLR 75
Johnson v Gore Wood & Co [2002] 2 AC 1
Kayteal Pty Ltd v Dignan [2011] NSWSC 197
Kermani v Westpac Banking Corporation [2012] VSCA 42
Michael Wilson & Partners Ltd v Nicolls (2011) 282 ALR 685
Mitchell Morgan Nominees Pty Ltd & Anor v Vella & Ors [2011] NSWCA 390
Owners Strata Plan No 62660 v Jacksons Landing Development Pty Ltd [2011] NSWSC 415
Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Limited [2011] FCA 473
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232
Redowood Pty Limited v Link Market Services Pty Limited (formerly Known As Asx Perpetual Registrars Limited) [2007] NSWCA 286
Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142
Solak v Registrar of Titles No 2 [2010] VSC 146
Solak v Registrar of Titles [2011] VSCA 279
Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332
Triantafillidis v National Australia Bank Ltd (1995) V ConvR 54-536
Walton v Gardiner [1993] HCA 77; 177 CLR 378
Whelan Kartaway Pty…

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 Burns v Ingram

Details

AGLC: Burns v Ingram [2012] NSWSC 418
Case: [2012] NSWSC 418
Decision Date: 17 May 2012

CaseChat Overview and Summary

The defendant, Ingram, filed a notice of motion seeking summary dismissal and/or striking out of the proceedings initiated by the plaintiff, Burns, on the grounds that the proceedings constituted an abuse of process. Ingram also sought a costs order, contending that the proceedings were commenced and maintained without a reasonable cause of action. Burns opposed the motion, asserting that the proceedings were legitimate and that Ingram was not entitled to the relief sought.

The court was tasked with determining whether the proceedings were an abuse of process, and if so, whether summary dismissal and/or striking out was appropriate. The court also had to consider whether a costs order should be made in Ingram's favour. In examining these issues, the court focused on the nature of the proceedings and whether they were commenced with a genuine intention to pursue a legitimate cause of action.

The court concluded that the proceedings were not an abuse of process and dismissed the motion. The court found that there was a reasonable cause of action, and the proceedings were not brought for an improper purpose. Consequently, the court denied Ingram's request for summary dismissal, striking out, and costs. The motion was dismissed with no orders for costs.

Orders