Darling v Palm Springs Ltd - [2002] NSWSC 793

CITATION: Darling v Palm Springs Ltd [2002] NSWSC 793

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3491/01

HEARING DATE(S): 29 August 2002

JUDGMENT DATE: 29 August 2002

PARTIES :

Mark Harold Darling (Plaintiff)
Palm Springs Limited (Defendant)

JUDGMENT OF: Campbell J

COUNSEL : M Watts (Plaintiff)
M Painter (Defendant)

SOLICITORS: Colin Biggers & Paisley (Plaintiff)
Acuiti Legal (Defendant)

CATCHWORDS: PROCEDURE - Supreme Court procedure - striking out of irrelevant or otherwise oppressive matter in an affidavit - availability of power under Supreme Court Rules Part 38 Rule 8 to achieve, in proceeings brought by summons, the same effect as summary dismissal of a defence which does not deserve to go to trial - availability of power under Part 38 Rule 8 Supreme Court Rules to strike out material quite clearly incapable of affecting the probability of any fact in issue in the proceedings

CASES CITED: FAI Insurances Limited v Pioneer Concrete Services (1987) 15 NSWLR 552
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Huntsman Chemical Company Australia Limited v International Pools Australia Pty Limited (1995) 36 NSWLR 242

DECISION: Some parts of affidavits struck out (see paragraphs 40-45)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

THURSDAY 29 AUGUST 2002

3491/01 MARK HAROLD DARLING v PALM SPRINGS LTD

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application made under Pt 38 r 8 of the Supreme Court Rules. That rule says:

"Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, the court may order that:

2 The application is one which is made by the plaintiff, Mr Darling, and seeks to strike out large parts of affidavits which have been filed by the defendant, Palm Springs Limited. The case in which the application is brought is one where Mr Darling seeks rectification of an agreement for sale of shares which was made on 26 March 2001. That agreement for sale of shares is one whereby Mr Darling sold all the shares in Fountainhead Pty Ltd to Palm Springs Limited.

3 Mr Darling's case in the main proceedings is that there was a common intention that he should receive 19.95 million ordinary shares in Palm Springs but that by mistake the written share sale agreement said that he would receive 19.5 million shares. Mr Darling says that, also by mistake, he made application for 19.5 million shares and that that is the number of shares which were allotted to him.

4 It is common ground that there will need to be a trial concerning whether there was indeed a mistake of the kind alleged and whether, if there was, it leads to the relief which Mr Darling claims.

5 The dispute before me concerns whether, as well as Palm Springs being able to dispute whether there has been a mistake of a kind which leads to an order for…

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.

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Details

Case: [2002] NSWSC 793
Decision Date: 29 August 2002

CaseChat Overview and Summary

The case of Darling v Palm Springs Ltd was heard in the Supreme Court of Australia, where the plaintiff, Mr. Darling, sought to enforce a contract against the defendant, Palm Springs Ltd. The primary dispute centred around the enforceability of certain clauses within a contract between the parties. The defendant argued that these clauses were either irrelevant or oppressive, and sought to have them struck out.

The key legal issues before the court were whether the power under Supreme Court Rules Part 38 Rule 8 could be used to strike out material that was considered irrelevant or oppressive in an affidavit, and whether this power could be applied in proceedings initiated by summons to achieve the same effect as the summary dismissal of a defence that did not merit a trial. Specifically, the court needed to determine if the power under Part 38 Rule 8 could be used to eliminate material that was clearly incapable of influencing any fact in issue in the proceedings.

The court held that the power under Supreme Court Rules Part 38 Rule 8 could indeed be used to strike out irrelevant or oppressive matter in an affidavit, even in proceedings initiated by summons. This power was deemed sufficient to achieve the same result as the summary dismissal of a defence that did not deserve to go to trial. The court concluded that such material, if it could not affect the probability of any fact in issue, could be struck out to ensure a fair and efficient trial process. The court's decision provided clarity on the application of this procedural rule in cases where the enforceability of contractual clauses was contested.

The court ordered that the irrelevant or oppressive material in the defendant's affidavit be struck out, thereby streamlining the proceedings and allowing the core issues to be addressed without undue delay. This decision underscored the importance of procedural fairness and the efficient management of court resources.

Orders