CIVIL PROCEDURE – Application to dismiss proceedings in whole UCPR 13.4 and 14.28 – Argument that contract sued upon had been mutually abandoned and replaced by a different contract – Not manifestly clear this had occurred – Plaintiff’s case arguable – Application to strike out collateral contract claim against 2D – Whether claim sufficiently pleaded – Whether claim arguable.
SECURITY FOR COSTS – Order made that would not stifle proceedings.
A.F. Rath QC, Principles and Precedents of Pleading (N.S.W.), Law Book Co of Aust Ltd, 1961, [10] p 3.
Category:
Procedural rulings
Parties:
Plaintiff – Paul Fraser First Defendant – Gorilla Rush Pty Ltd Second Defendant – Samuel Oliver Johnson
Representation:
Counsel: Plaintiff – Mr Vernier, A. First & Second Defendants – Mr Fagir, O. (26 February) & Mr Haines, B. (28 February).
Solicitors: Plaintiff – My General Counsel First & Second Defendant – Holding Redlich
File Number(s):
2024/00272199
Publication restriction:
Nil.
Judgment ON MOTIONS
HIS HONOUR: By Statement of Claim filed on 24 July 2024, Paul Fraser, who in the affidavit verifying the pleading, gives his address as a flat in 520 Chiswick High Road, Chiswick, London, claims £171,625 stg for, on one view of the evidence, what could be described as wages, for work done by him between 4 October 2022 and 31 December…
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
AGLC
Fraser v Gorilla Rush Pty Ltd [2025] NSWDC 109
Case
[2025] NSWDC 109
Decision Date
CaseChat Overview and Summary
In Fraser v Gorilla Rush Pty Ltd, the respondent, Gorilla Rush, sought to dismiss the appellant's proceedings on two grounds. Firstly, they argued that the contract the appellant had sued upon had been mutually abandoned and replaced by a different contract. Secondly, they sought to strike out the appellant's claim for a collateral contract against their second defendant. The dispute was heard in the Supreme Court of New South Wales. The appellant, Fraser, had brought an action against the respondents for damages for breach of contract and for an account of profits. The respondents, Gorilla Rush and another defendant, sought to have the proceedings dismissed on the grounds mentioned above.
The court was required to determine whether the contract had been mutually abandoned and replaced by a different contract, as well as whether the appellant's claim for a collateral contract against the second defendant was sufficiently pleaded and arguable. The court found that it was not manifestly clear that the contract had been abandoned, and that the appellant's case was arguable. Therefore, the application to dismiss the proceedings in whole was dismissed. Regarding the claim for a collateral contract, the court found that the claim was sufficiently pleaded and arguable, and so the application to strike out the claim was also dismissed.
The court also considered the issue of security for costs, and made an order that would not stifle the proceedings. The order was that the appellant should provide security for the respondents' costs of the proceeding, up to a specified amount. This order was made to ensure that the respondents would not be disadvantaged by the appellant's inability to pay costs if they were successful in the proceedings. The final orders of the court are set out in paragraph [45] of the judgment.