Farrow-Pryke v Johnson

[2024] NSWDC 549

District Court

New South Wales

Medium Neutral Citation:

Farrow-Pryke v Johnson & Anor [2024] NSWDC 549

Hearing dates:

21 November 2024

Date of orders:

21 November 2024

Decision date:

21 November 2024

Jurisdiction:

Civil

Before:

Abadee DCJ (as List Judge)

Decision:

See paragraph [47]

Catchwords:

CIVIL PROCEDURE – imminent mediation and hearing dates – application for advance ruling on admissibility of documents recording settlement negotiations – applications for strike out or summary dismissal of cross-claim for abuse of process – application for interim payment from a solicitor’s trust account – referral of applicant for legal assistance

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 82

Evidence Act 1995 (NSW), ss, 87, 191, 192A

Uniform Civil Procedure Rules 2005 (NSW), rr, 7.36-7

Cases Cited:

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

HNOE Limited v Angus & Julia Stone Pty Ltd [2024] NSWCA 271

UBS AG v Tyne (2018) 265 CLR 77

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Ms Natasha Farrow-Pryke (Plaintiff/Applicant)
Ms Elyse Johnson (First Defendant/Respondent)
Mr Leslie Farrow-Pryke (Second Defendant)

Representation:

Counsel:
Applicant (self-represented)
Mr P C Gledson (First Defendant/Respondent)

Solicitors:
Telemon Lawyers (First Defendant/Respondent)

File Number(s):

2023/00207069

Publication restriction:

Nil

Ex tempore reasons for judgment (REVISED)

Introduction

1. The proceeding was commenced in Tamworth. It concerns an unfortunate dispute between a daughter, her sister and her father, who, it is said, were partners to a business in Avalon established in 2014. The business ceased in about 2018 and the proceeding features a dispute following the fallout. The proceeding is listed for hearing on 18 March 2025 (with a 3 day estimate). Before that, however, the parties have been directed to participate in a court-annexed mediation set down for 9 December 2024.

2. By her amended statement of claim, the plaintiff asserts a veritable smorgasbord of actions or complaints against the defendants, including breach of contract (the partnership agreement), breach of fiduciary duty, defamation, embezzlement, misappropriation. The claims for relief were also varied. Reference is made to consequential loss and damages, but also to misappropriated funds and proceeds from the sale of the business. Some, but not necessarily all of the prayers for relief, may be characterised as “damages”. That point has significance for one of the applications now before me. This pleading was drafted by the plaintiff herself.

3. The matter has been defended (more actively by the first defendant). Materially, however, on 22 December 2023, the first defendant (who I will refer to as the respondent) filed a cross-claim. By the cross-claim, the respondent pleaded as a term of the agreement, a requirement for the applicant to pay annual instalments in the sum of $5,000 for goodwill for each year which were, to be $25,000 in the aggregate. In the events that occurred, it is alleged that only $10,000 was paid by the applicant, so that the applicant was allegedly in breach by failing to pay other instalments for 2017, 2018 and 2019. The quantum of the cross-claim is $15,000.

4. The applicant filed a…