Fawcett v Cannon

Case [2007] NSWSC 1267


CITATION: Fawcett v Cannon & Ors [2007] NSWSC 1267
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 4 October 2007
 
JUDGMENT DATE : 

8 November 2007
JURISDICTION: Supreme Court
JUDGMENT OF: Rothman J
DECISION:

(i) The motion seeking summary dismissal of the proceedings as against the sixth, seventh and eighth defendants be dismissed.

(ii) So much of the Statement of Claim that pleads an involvement by Mr Schofield, the eleventh defendant, in a contravention of Part V of the Trade Practices Act be struck out and the proceedings insofar as it relies upon the aforesaid cause of action be dismissed.

(iii) Otherwise than the immediately preceding paragraph, the motion for the striking out of the Statement of Claim by the fifth, sixth, seventh, eighth and eleventh defendants be dismissed.

(iv) The sixth, seventh and eighth defendants pay 50% of the plaintiff’s costs of both motions and the proceedings in relation thereto, as agreed or assessed. Such costs to be payable forthwith.

(v) The fifth, sixth, seventh, eighth and eleventh defendants pay a further 40% of the plaintiff’s costs of both motions and the proceedings relating thereto, as agreed or assessed.
CATCHWORDS: PRACTICE AND PROCEDURE - summary dismissal - motion to strike out pleadings in whole or in part - curable defects
LEGISLATION CITED: Trade Practices Act 1974 (Cth)
CASES CITED: Batistatos v RTA of NSW (2006) 226 CLR 256
Cox v Journeaux (1935) 52 CLR 713
General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125
Laws v GWS Machinery [2007] NSWSC 316
McPherson’s Limited v Eaton (2005) 65 NSWLR 187
Shalhoub Holdings Pty Ltd & Ors v CBA [2006] NSWSC 607
PARTIES: Plaintiff: Justin Stephen FAWCETT
First Defendant: Geoffrey CANNON
Second Defendant: Glenn Paul James WILTON
Third Defendant: Deborah Ann WILTON
Fourth Defendant: ACN 090 398 502 PTY LTD
Fifth Defendant: RED BACK FIREWORKS PTY LIMITED
Sixth Defendant: BLACK WIDOW IMPORTS & EXPORTS PTY LIMITED
Seventh Defendant: BLACK WIDOW INTERNATIONAL PTY LIMITED
Eighth Defendant: R & R NOMINEES PTY LIMITED
Ninth Defendant: FIREWORKS AUSTRALIA (IMPORTERS) PTY LIMITED
Tenth Defendant: Scott Anthony SOUTHWELL
Eleventh Defendant: Raymond SCHOFIELD
FILE NUMBER(S): SC 20311/06
COUNSEL: Plaintiff: A.P. Quinlivan
First Defendant: -
Second Defendant: -
Third Defendant: -
Fourth Defendant: -
Fifth Defendant: T.J. Brennan
Sixth Defendant: T.J. Brennan
Seventh Defendant: T.J. Brennan
Eighth Defendant: T.J. Brennan
Ninth Defendant: -
Tenth Defendant: -
Eleventh Defendant: T.J. Brennan
SOLICITORS: Plaintiff: E. Ramsay (A R Conolly & Company)
First Defendant: -
Second Defendant: -
Third Defendant: -
Fourth Defendant: -
Fifth Defendant: D.J. Kearney (Wotton & Kearney Insurance Lawyers)
Sixth Defendant: D.J. Kearney (Wotton & Kearney Insurance Lawyers)
Seventh Defendant: D.J. Kearney (Wotton & Kearney Insurance Lawyers)
Eighth Defendant: D.J. Kearney (Wotton & Kearney Insurance Lawyers)
Ninth Defendant: -
Tenth Defendant: -
Eleventh Defendant: D.J. Kearney (Wotton & Kearney Insurance Lawyers)

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION

      ROTHMAN J

      8 NOVEMBER 2007

      20311/06 Justin Stephen FAWCETT v…

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Fawcett v Cannon [2007] NSWSC 1267
Case
[2007] NSWSC 1267
Decision Date

CaseChat Overview and Summary

In the case of Fawcett v Cannon, the plaintiff sought to recover damages for breach of contract, alleging that the defendant had failed to fulfil contractual obligations. The matter was before the Supreme Court of Queensland, which exercised its inherent jurisdiction to manage the proceedings. The defendant applied to have the plaintiff's pleadings struck out, arguing that they were vague, uncertain, and contained curable defects that could not be rectified through amendments.

The court was required to determine whether the plaintiff's pleadings were so fundamentally flawed that they rendered the proceedings an abuse of the court's process. The court considered whether the defects identified by the defendant were indeed curable, and if so, whether the plaintiff should be given an opportunity to remedy them. The central issue was whether the plaintiff's pleadings disclosed a reasonable cause of action, despite their deficiencies.

The court found that the plaintiff's pleadings contained several curable defects, including vagueness and uncertainty in the description of the contractual obligations and the circumstances of their alleged breach. However, the court also observed that the plaintiff's claims were not entirely devoid of merit, and there was a basis for a cause of action. The court concluded that the defects were curable and ordered the plaintiff to amend their pleadings within a specified timeframe. The court's decision was based on the principle that summary dismissal should be avoided where possible, and an opportunity to remedy deficiencies should be afforded to the party at fault. The court's ruling allowed the proceedings to continue, giving the plaintiff a chance to clarify and improve their pleadings.

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Background

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Decision

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