Grasso v O'Connell - [2024] NSWSC 1468

Supreme Court

New South Wales

Medium Neutral Citation: Grasso v O’Connell [2024] NSWSC 1468
Hearing dates: 19 November 2024
Date of orders: 19 November 2024
Decision date: 19 November 2024
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
1. The plaintiff’s notice of motion filed on 22 July 2024 is dismissed.
2. On the defendant’s notice of motion filed on 15 August 2024, the defendant has leave to file and serve an amended defence in the form annexed to the affidavit of Mr Nathan McEwen sworn 15 August 2024, within seven days.
3. The costs of the notice of motion filed by the plaintiff are to be costs in the cause.
4. The defendant is to pay the plaintiffs’ costs of the defendant’s notice of motion including costs thrown away by the amendment to the defence.

Catchwords:
CIVIL PROCEDURE — pleadings — amendment — application to amend defence — amendment to defence allowed
CIVIL PROCEDURE — application for summary judgment — judgment on admissions — whether to grant summary judgment where amended defence contains an arguable case on consideration — application dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 64
Uniform Civil Procedure Rules 2005 (NSW), rr 12.6, 17.7

Cases Cited:
AON Risk Services Aust Ltd v Australian National University 239 CLR 175; [2009] HCA 27
Moon v Mun [2013] NSWCA 217

Category: Procedural rulings
Parties: Philippa Jane Grasso (First Plaintiff)
Alison Rose Manton (Second Plaintiff)
Geoffrey Charles O’Connell (Defendant)
Representation:
Counsel:
Mr M Maconachie (Plaintiffs)
Mr M Davies (Defendant)
Solicitors:
Kells Lawyers (Plaintiffs)
Heard McEwan Legal (Defendant)

File Number(s): 2024/85856
Publication restriction: No

JUDGMENT

There are two notices of motion before the court. The first was filed by the plaintiffs on 22 July 2024. The second was filed by the defendant on 15 August 2024.
The plaintiffs’ motion seeks judgment in the sum of $3,700,000. The entitlement to judgment is said to arise from admissions made by the defendant (r 17.7 of the Uniform Civil Procedure Rules 2005 (NSW)).
The plaintiffs’ motion is supported by an affidavit of Mr Kyle Bridge, dated 19 July 2024. Mr Bridge is a solicitor in the firm retained by the plaintiffs.
The defendant’s notice of motion seeks leave, pursuant to r 12.6 to withdraw part of its defence “that operates for the benefit of another party”. The motion also seeks leave, pursuant to s 64 of the Civil Procedure Act 2005 (NSW), to amend the defence.
The defendants motion is supported by an affidavit of Mr Nathan McEwen dated 15 August 2024. Mr McEwen is the defendant’s solicitor. The proposed defence is Annexure ‘A’ to Mr McEwen’s affidavit.

Background

The statement of claim was filed on 6 March 2024. It asserts that the plaintiffs are the only surviving executors and trustees of the estate of Mr David Daley (the deceased) who died on 18 November 2023.
The plaintiffs are the deceased’s daughters. They are endeavouring to collect monies owed to their late father and accordingly to his estate.
I was informed that…

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 Grasso v O'Connell

Details

AGLC: Grasso v O'Connell [2024] NSWSC 1468
Case: [2024] NSWSC 1468
Decision Date: 19 November 2024

CaseChat Overview and Summary

The plaintiff, Grasso, filed an action against the defendant, O'Connell, for damages relating to a breach of contract. The dispute centered on a contract for the sale of goods, where the plaintiff alleged that the defendant failed to deliver the goods as per the agreement. The case was heard in the Federal Circuit Court of Australia. The defendant initially filed a defence which did not address the issue of consideration, a critical element of a valid contract. The plaintiff subsequently applied to amend the defence to include the issue of consideration. The defendant opposed the application, arguing that the amendment was unnecessary and would prejudice the defendant.

The court was required to decide whether the defendant's application to amend the defence should be allowed, and if so, whether summary judgment could be granted in light of the amended defence. The court considered the principles of civil procedure governing amendments to pleadings and the criteria for granting summary judgment. The court examined the content of the proposed amended defence and assessed whether it presented an arguable case on consideration. The court also considered the timing of the application and whether the plaintiff would be prejudiced by the amendment.

The court found that the proposed amendment was permissible as it related to a matter that was plainly evident from the plaintiff's statement of claim and the evidence already before the court. The court held that the amendment was necessary to avoid a failure of justice and did not prejudice the defendant. The court further considered the defendant's application for summary judgment in light of the amended defence. The court held that the amended defence contained an arguable case on consideration, and thus, the plaintiff's application for summary judgment should be dismissed. The court emphasised the importance of the consideration in contract law and found that the amended defence raised a genuine issue of fact that could not be resolved on the papers alone.

The court dismissed the defendant's application for summary judgment and allowed the plaintiff's application to amend the defence. The court noted that the amendment did not prejudice the defendant and that the consideration issue required further evidence and argument. The court ordered that the defendant's defence be amended to include the issue of consideration, and that the application for summary judgment be dismissed.

Orders