Gillies v Moir - [2014] NSWSC 1481

Supreme Court

New South Wales

Medium Neutral Citation: Gillies v Moir [2014] NSWSC 1481
Hearing dates: 09/09/2014
Decision date: 31 October 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Judgment for the first, second and third defendants on the plaintiff's claim.
(2) Plaintiff is to pay the first, second and third defendants' costs of the proceedings, including the costs of the Notices of Motion.

Catchwords: PROCEDURE - civil - summary dismissal - Amended Statement of Claim - no cause of action articulated - Uniform Civil Procedure Rules 2005 - non-compliance with proper pleading requirements - PROCEDURE - civil - summary disposal -dismissal - standing - bankruptcy - discharged bankrupt - no assignment of choses in action by Trustee in Bankruptcy - no standing - PROCEDURE - civil - summary dismissal - Limitation Act 1969 - expiration of limitation period - statute barred - abuse of process - COSTS - general rule that costs follow event
Legislation Cited: Bankruptcy Act 1966 (Cth),
Limitation Act 1969
Uniform Civil Procedure Rules 2005
Cases Cited: David Charles Bott v Trevor John Carter [2009] NSWSC 236
Gillies v Brewer [2014] NSWSC 1198
Gillies v Eastlake [2014] NSWSC 611
Gillies v Forrest [2014] NSWSC 648
Gillies v State New South Wales [2014] NSWSC 1350
Gunns Limited v Marr [2005] VSC 251
Category: Principal judgment
Parties: Darrin Michael Gillies (P)
Nicholas Moir (D1)
Brian Glendenning, Matthew Smith, Tony Cardilo and John Williams (D2)
Chris O'Brien (D3)
Representation: Counsel:
D Weinberger (D2)
D Priestley (D1,D3)
Solicitors:
DLA Piper (D2)
HWL Ebsworth Lawyers (D1,D3)

File Number(s): 2013/370089

Judgment

This judgment deals with the applications by the defendants in these proceedings for summary dismissal of the proceedings.

The applications were brought by Notices of Motion dated 21 May 2014, 21 July 2014 and 3 September 2014, and came before the Court in the Duty List in circumstances where the plaintiff, although served, did not appear.

For the reasons below, I have determined that the applications of the defendants for summary dismissal should be granted, and orders giving effect to that conclusion should be made.

The Plaintiff's Claim

The plaintiff, Mr Gillies, commenced proceedings by a Statement of Claim filed on 9 December 2013.

The Statement of Claim named the first defendant as Nicholas Moir & Associates Pty Ltd, and the second defendant as Harris Wheeler Lawyers. The claim as against the first named defendant was said to have arisen from the plaintiff's retainer of Mr Nicholas Moir, and as against the second named defendant, from its conduct in representing a party opposed to the plaintiff in previous proceedings.

On 9 April 2014, the plaintiff filed an Amended Statement of Claim which named the following as defendants:

(a) First Defendant - Nicholas David Moir, who it was pleaded was the former principal of Nicholas Moir & Associates Pty Ltd;

(b) Second Defendants - Brian Glendenning, Matthew Smith, Tony Cardilo and John Williams, who it was pleaded were the partners of Harris Wheeler Lawyers at the relevant time ; and

(c)…

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 Gillies v Moir

Details

AGLC: Gillies v Moir [2014] NSWSC 1481
Case: [2014] NSWSC 1481
Decision Date: 31 October 2014

CaseChat Overview and Summary

The case of Gillies v Moir was heard in the Federal Circuit Court of Australia. The plaintiff, Gillies, sought to recover a debt from the defendant, Moir. The dispute centred on the procedural and substantive legal issues that arose from the way the plaintiff had attempted to bring the case, the standing of the plaintiff, and whether the claim was statute-barred. The court had to determine whether the case could proceed, whether the plaintiff had the standing to bring the action, and whether the claim was barred by the Limitation Act 1969.

The central legal issues the court needed to address were whether the Amended Statement of Claim complied with the proper pleading requirements under the Uniform Civil Procedure Rules 2005, whether the plaintiff had standing given that Moir was a discharged bankrupt without any assignment of choses in action by the Trustee in Bankruptcy, and whether the claim was statute-barred under the Limitation Act 1969. Additionally, the court considered whether the plaintiff had abused the legal process and the appropriate allocation of costs under the general rule that costs follow the event.

The court found that the Amended Statement of Claim did not articulate a cause of action, and thus, did not comply with the proper pleading requirements. Further, it was determined that the plaintiff, being a discharged bankrupt, had no standing to bring the action as there had been no assignment of the choses in action by the Trustee in Bankruptcy. The court also ruled that the claim was statute-barred because it had been instituted after the expiration of the limitation period under the Limitation Act 1969. Given these findings, the court dismissed the case. The court further held that the plaintiff had abused the legal process and ordered the plaintiff to pay the defendant's costs.

Orders