Hanson v Hunter

Case [2015] NSWDC 220

District Court


New South Wales

Medium Neutral Citation: Hanson v Hunter [2015] NSWDC 220
Hearing dates:19 and 28 August 2015
Date of orders: 30 September 2015
Decision date: 30 September 2015
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Leave to amend the statement of claim refused.
(2) The plaintiff’s claims in injurious falsehood (paragraphs 10 – 18) and under the Fair Trading Act 1987 (NSW) are dismissed, with costs payable in accordance with order 3 below.
(3) The plaintiff is to pay the defendant’s costs of the proceedings for injurious falsehood and under the Fair Trading Act 1987 as well as the costs of this application on an indemnity basis, such costs to be assessed and assessable forthwith and to include: (a) the costs of and incidental to the plaintiff’s application to amend in terms of the “First Proposed Amended Statement of Claim” dated 5 May 2015, as defined in paragraph 3 of the Plaintiff’s Supplementary Submissions, which was withdrawn on 10 June 2015; (b) the costs of and incidental to the plaintiff’s application to amend in terms of the “Second Proposed Amended Statement of Claim” dated 10 June 2015, as defined in paragraph 4 of the Plaintiff’s Supplementary Submissions, which was withdrawn on 25 August 2015; (c) the costs of and incidental to the plaintiff’s application to amend in terms of the Third Proposed Amended Statement of Claim dated 25 August 2015, containing the “Proposed Amendments”, as defined in paragraph 5 of the Plaintiff’s Supplementary Submissions, which was unopposed; (d) the costs thrown away by the amendments made to the statement of claim in terms of the “Proposed Amendments”, as defined in paragraph 5 of the Plaintiff’s Supplementary Submissions; (e) the costs of responding to the claims for relief in the statement of claim for injurious falsehood and misleading and deceptive conduct in contravention of s 42 of the Fair Trading Act 1987 (NSW) pursuant to ss 68 and 72 of that Act.
(4) The plaintiff file an amended statement of claim in terms of the draft amended statement of claim which is annexure A to the plaintiff’s submissions dated 25 August 2015, such amended statement of claim to be filed and served in 14 days.
(5) The defendant file a defence 28 days after service of the statement of claim.
(6) These proceedings listed for further directions at 9 am on Thursday 3 December 2015.

Catchwords: TORT - plaintiff commenced proceedings in 2011 for injurious falsehood, defamation and a claim under the Fair Trading Act 1987 (NSW) - no special damages particularised in the injurious falsehood claim - similar defects in Fair Trading Act claim - statement of claim not served for 18 months - further delay in litigation while validity of service challenged - defendant seeks further and better particulars and foreshadows application to challenge pleadings - plaintiff seeks leave to abandon injurious falsehood and Fair Trading Act claims - plaintiff brings application to plead republication and special damage in the defamation claim which is abandoned…

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Details
AGLC
Hanson v Hunter [2015] NSWDC 220
Case
[2015] NSWDC 220
Decision Date

CaseChat Overview and Summary

Hanson commenced proceedings against Hunter in 2011 for injurious falsehood, defamation and a claim under the Fair Trading Act 1987 (NSW). Hanson alleged that Hunter made false statements regarding property defects, which led to a decrease in the property’s market value. The statement of claim did not particularise any special damages in the injurious falsehood claim, and similar defects were alleged in the Fair Trading Act claim. The statement of claim was not served for 18 months. The litigation was further delayed while the validity of the service was challenged. Hunter sought further and better particulars and foreshadowed an application to challenge the pleadings. Hanson then sought leave to abandon the injurious falsehood and Fair Trading Act claims. Hanson also brought an application to plead republication and special damage in the defamation claim, which was abandoned after judgment was reserved. Hunter sought summary dismissal of the remaining claims and argued that Hanson should pay costs on an indemnity basis.

The court was required to decide whether Hunter’s application for summary dismissal should proceed, given that Hanson abandoned the injurious falsehood and Fair Trading Act claims. The court also needed to determine whether Hanson should pay the costs of the abandoned claims and proposed amendments on an indemnity basis, assessable forthwith.

The court refused leave to amend the statement of claim. The court dismissed Hanson’s claims in injurious falsehood and under the Fair Trading Act, awarding costs to Hunter. The court ordered Hanson to pay Hunter’s costs of the proceedings for injurious falsehood and under the Fair Trading Act, as well as the costs of this application on an indemnity basis. The court also ordered Hanson to file an amended statement of claim within 14 days and directed further proceedings.

The court issued orders for Hanson to pay Hunter’s costs, including those associated with the abandoned claims and proposed amendments on an indemnity basis, assessable forthwith. Hanson was also ordered to file an amended statement of claim within 14 days, and Hunter was directed to file a defence 28 days after service. The proceedings were listed for further directions on 3 December 2015.

Orders

Orders of the court

(1) Leave to amend the statement of claim refused.

(2) The plaintiff’s claims in injurious falsehood (paragraphs 10 – 18) and under the Fair Trading Act 1987 (NSW) are dismissed, with costs payable in accordance with order 3 below.

(3) The plaintiff is to pay the defendant’s costs of the proceedings for injurious falsehood and under the Fair Trading Act 1987 as well as the costs of this application on an indemnity basis, such costs to be assessed and assessable forthwith and to include: (a) the costs of and incidental to the plaintiff’s application to amend in terms of the “First Proposed Amended Statement of Claim” dated 5 May 2015, as defined in paragraph 3 of the Plaintiff’s Supplementary Submissions, which was withdrawn on 10 June 2015; (b) the costs of and incidental to the plaintiff’s application to amend in terms of the “Second Proposed Amended Statement of Claim” dated 10 June 2015, as defined in paragraph 4 of the Plaintiff’s Supplementary Submissions, which was withdrawn on 25 August 2015; (c) the costs of and incidental to the plaintiff’s application to amend in terms of the Third Proposed Amended Statement of Claim dated 25 August 2015, containing the “Proposed Amendments”, as defined in paragraph 5 of the Plaintiff’s Supplementary Submissions, which was unopposed; (d) the costs thrown away by the amendments made to the statement of claim in terms of the “Proposed Amendments”, as defined in paragraph 5 of the Plaintiff’s Supplementary Submissions; (e) the costs of responding to the claims for relief in the statement of claim for injurious falsehood and misleading and deceptive conduct in contravention of s 42 of the Fair Trading Act 1987 (NSW) pursuant to ss 68 and 72 of that Act.

(4) The plaintiff file an amended statement of claim in terms of the draft amended statement of claim which is annexure A to the plaintiff’s submissions dated 25 August 2015, such amended statement of claim to be filed and served in 14 days.

(5) The defendant file a defence 28 days after service of the statement of claim.

(6) These proceedings listed for further directions at 9 am on Thursday 3 December 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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