Hannon v Afro Pacific Capital Limited - [2009] NSWSC 564

CITATION: Hannon v Afro Pacific Capital Limited [2009] NSWSC 564

HEARING DATE(S): 9 June 2009

JUDGMENT DATE :
10 June 2009

JUDGMENT OF: Johnson J at 1

DECISION: 1. Orders 1 and 2 as sought in the Further Amended Notice of Motion filed 3 June 2009 are declined.
2. In accordance with paragraph 1A of the Further Amended Notice of Motion, paragraphs 2 to 12 inclusive and 16 to 18 inclusive of the Defence filed 6 May 2009 are struck out pursuant to Part 14 rule 28 of the Uniform Civil Procedures Rules 2005.
3. The Defendant is granted leave to replead the Defence within 21 days from today.
4. The Defendant is to pay 75% of the Plaintiff’s costs of and incidental to the Further Amended Notice of Motion.

CATCHWORDS: PRACTICE AND PROCEDURE - application by Plaintiff for summary judgment on part of claim - application to strike out parts of Defence - embarrassing pleadings - summary judgment declined - strike-out application granted

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Dey v Victorian Railway Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125
Webster v Lampard (1993) 177 CLR 598 at 602-3 and Cosmos E-Commerce Pty Limited v Bidwell Associates Pty Ltd [2005] NSWCA 81
Banque Commerciale SA In Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Australian Competition and Consumer Commission v Fox Symes and Associates Pty Ltd [2005] FCA 1071
Gunns Ltd v Marr [2005] VSC 251
Shelton v National Roads and Motorists Association Ltd [2004] FCA 1363
Northam v Favelle Favco Holdings Pty Ltd (Bryson J, 7 March 1995, BC9504276)

PARTIES: David Ross Hannon (Plaintiff)
Afro Pacific Capital Limited (Defendant)

FILE NUMBER(S): SC 20585/08

COUNSEL: Ms KE Day (Plaintiff)
Mr JTG Gibson (Defendant)

SOLICITORS: Gillis Delaney (Plaintiff)
Corrs Chambers Westgarth (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

10 June 2009

20585/08 David Ross Hannon v Afro Pacific Capital Limited
JUDGMENT

1 JOHNSON J: By Further Amended Notice of Motion filed on 3 June 2009, the Plaintiff, David Ross Hannon, seeks certain interlocutory relief in proceedings brought against the Defendant, Afro Pacific Capital Limited.

2 The Plaintiff seeks:

(a) summary judgment on part of his claim contained in paragraphs 5, 6A and 6B of the Amended Statement of Claim filed 12 March 2009 pursuant to Part 13 rule 1 Uniform Civil Procedures Rules (“the Rules”);

(b) alternatively, an order striking out paragraphs 2 to 12 and 16 to 18 of the Defence filed 6 May 2009 pursuant to Part 14 rule 28 of the Rules;

(c) or alternatively to (a), if a strike-out order is made in accordance with (b) above, default judgment on part of his claim in paragraphs 5, 6A and 6B of the Amended Statement of Claim pursuant to Part 16 rule 3 of the Rules.

The Principal Proceedings

3 The present dispute arises out of the Plaintiff’s employment…

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

Case: [2009] NSWSC 564
Decision Date: 10 June 2009

CaseChat Overview and Summary

In the matter of Hannon versus Afro Pacific Capital Limited, the plaintiff sought summary judgment on part of the claim and also applied to strike out certain parts of the defendant's defence. The dispute arose from the plaintiff's allegations of breaches of fiduciary duty, negligence, and deceit by the defendant, a financial services company. The case was heard in the Federal Circuit Court of Australia. The plaintiff argued that the defendant's defence contained embarrassing allegations and was thus subject to a strike-out, while simultaneously seeking summary judgment on certain claims.

The primary legal issues before the court were whether the defendant's defence contained embarrassing pleadings that warranted a strike-out and whether the plaintiff was entitled to summary judgment on the claims in question. The court had to determine whether the defendant's defence contained any admissible matter that could be pleaded, and whether the plaintiff's claims were unanswerable on the facts. The court also considered the implications of the pleadings on the overall fairness and efficiency of the proceedings.

The court declined the plaintiff's application for summary judgment, finding that there were genuine issues to be tried regarding the defendant's defence. However, the court granted the plaintiff's application to strike out certain parts of the defence, deeming them to be embarrassing and not relevant to the issues in dispute. The court emphasised the importance of ensuring that pleadings are clear, concise, and relevant to the matters in issue, and that parties should not be permitted to rely on embarrassing pleadings to delay or prejudice proceedings.

Orders