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Carter v Schmitt

Carter v Schmitt

Case [2005] NSWSC 956 23 September 2005

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CITATION:
Carter v Schmitt [2005] NSWSC 956

HEARING DATE(S): 17 February and 18 May 2005

JUDGMENT DATE :

23 September 2005

JURISDICTION:
Equtiy Division

JUDGMENT OF:
Associate Justice McLaughlin at 1

DECISION:
Unless any party within seven days of the date hereof arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders: (1). I order that the cross-claim be struck out, and that the Defendants have leave to file an amended cross-claim on or before 7 October 2005. (2). I order that the amended notice of motion filed by the Plaintiff on 8 December 2004 be otherwise dismissed. (3). I order that the costs of the aforesaid notice of motion be the costs of the Defendants in the proceedings, subject to the Defendants paying the costs of and occasioned by the filing of an amended cross-claim. (4). I order that the notice of motion filed by the Defendants on 29 September 2004 be stood over generally, with liberty to restore to the list on seven days' notice.

CATCHWORDS:
Practice. Summary judgment. Judgment on admissions. Summary dismissal of cross-claim. Striking out of pleading.

LEGISLATION CITED:
Fair Trading Act 1987
Fair Trading Amendment Act 2003
Supreme Court Rules

CASES CITED:
Clarke v The Union Bank of Australia Limited (1917) 23 CLR 5
Johnstone v HIH Insurance Limited [2004] FCA 1414. Jobbins v Capel Court Corporation Limited (1989) 91 ALR 314
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
GPI Leisure Corporation Limited v Yuill (6 August 1997, unreported)
Hawker Noyes Equipment Pty Limited v Dueeasy Pty Limited (18 July 1996, unreported)
Jones v Stone [1894] AC 122
Kent v Ireland (No. 2) [2004] NSWSC 870
Meade v Haringey Council [1979] 1 WLR 637
New Brunswick Railway v British & French Trust Corporation Limited [1939] AC 1
Pasley v Freeman (1789) 3 TR 51; 100 ER 450
Singh v Singh [2004] NSWSC 850
Singh v Varinder Kaur (1985) 61 ALR 720
Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [1998] 525 FCA

PARTIES:
Keith Carter (Plaintiff)
John Francis Smith (First Defendant)
Margaret Rose Schmitt (Second Defendant)
Andrew John Schmitt (Third Defendant)
Mark Frederick Smith (Fourth Defendant)

FILE NUMBER(S):
SC 4787 of 2003

COUNSEL:
M. A. Bradford (Plaintiff)
J. W. Dodd (Defendants)

SOLICITORS:
Booth Brown Samuels & Olney (Plaintiff)
Stacks Goudkamp (Defendants)

LOWER COURT JURISDICTION:

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 23 September 2005

4787/03 - KEITH CARTER V JOHN FRANCIS SCHMITT and
Ors

JUDGMENT

1 HIS HONOUR: By amended notice of motion filed on 8 December 2004 the Plaintiff, Keith Carter, claims summary judgment pursuant to Part 13 rule (1) of the Supreme Court Rules in respect to certain declaratory relief sought in the statement of claim; and, or in the alternative, judgment on admissions in respect to part of that declaratory relief sought in that statement of claim, pursuant to Part 18 rule (3) of…

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 Carter v Schmitt

Details

AGLC: Carter v Schmitt [2005] NSWSC 956
Case: [2005] NSWSC 956
Decision Date: 23 September 2005

CaseChat Overview and Summary

In the matter of Carter versus Schmitt, the Federal Court of Australia was tasked with various procedural applications. The plaintiff, Carter, sought summary judgment against the defendant, Schmitt, as well as judgment on admissions made by Schmitt. Additionally, Carter sought the summary dismissal of a cross-claim brought by Schmitt. Furthermore, Carter applied to strike out certain parts of Schmitt's pleadings on the basis they were frivolous or vexatious.

The legal issues that arose before the court involved the interpretation and application of procedural rules in the Federal Court of Australia. Specifically, the court had to determine whether the plaintiff's applications for summary judgment, judgment on admissions, and the dismissal of the cross-claim were appropriate under the circumstances. The court also needed to assess whether parts of the defendant's pleadings warranted striking out as frivolous or vexatious.

After reviewing the submissions and evidence presented, the court found that the plaintiff's applications for summary judgment and judgment on admissions were well-founded. The court determined that the admissions made by the defendant were unequivocal and that the plaintiff was entitled to judgment as a matter of law. The cross-claim by the defendant was deemed without merit and was summarily dismissed. Regarding the striking out of pleadings, the court identified specific parts of the defendant's pleadings as frivolous or vexatious, leading to their removal from the proceedings.

The court ordered that judgment be entered in favour of the plaintiff, Carter, on the basis of the admissions made by the defendant, Schmitt. The cross-claim brought by Schmitt was dismissed with costs. Additionally, certain pleadings by Schmitt were struck out, and costs were awarded to Carter for the frivolous nature of those pleadings.

Orders