Henry v Ford - [2009] NSWSC 1253

CITATION: Henry v Ford [2009] NSWSC 1253

HEARING DATE(S): 30 October 2009

JUDGMENT DATE :
30 October 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 30 October 2009

DECISION: Defendant's notice of motion filed 21 August 2009 dismissed with costs.

CATCHWORDS: PROCEDURE – Application to strike out and for summary dismissal – submitted that plaintiff ought to have brought relief she now seeks by cross-claim in earlier proceedings - reasons for the plaintiff’s failure to cross-claim and the reasonableness of that position cannot be properly adjudicated on application for summary dismissal – application dismissed

LEGISLATION CITED: Property (Relationships) Act 1984 (NSW)
Contracts Review Act 1980 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Ford v Henry [2009] NSWSC 147; (2009) 41 Fam LR 1
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332

PARTIES: Plaintiff: George Francis Henry
Defendant: Debra Anne Ford

FILE NUMBER(S): SC 3148/09

COUNSEL: Plaintiff: T Hodgson
Defendant: T J Morahan

SOLICITORS: Plaintiff: Nicholl & Co
Defendant: Hozack Clisdell Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 30 October 2009

3148/09 George Francis Henry v Debra Anne Ford

JUDGMENT

1 HIS HONOUR: This is an application by the defendant for an order under r 14.28 of the Uniform Civil Procedure Rules that the statement of claim be struck out, or for an order under r 13.4 that the proceedings be summarily dismissed as an abuse of process. By his statement of claim filed on 10 June 2009 the plaintiff seeks orders under s 20 of the Property (Relationships) Act 1984 (NSW) to adjust the interests of the parties in property.

2 On 5 December 2007 the present defendant instituted proceedings as plaintiff seeking a declaration that an agreement made between the parties called “Terms of Settlement" and executed on 2 September 2005 was a valid and binding agreement between the parties, with certain consequential relief. The document, signed by both parties on 2 December 2005 headed "Terms of Settlement," was headed with reference to the Property (Relationships) Act and stated that the parties consented to certain orders. These included the sale of what was called the former matrimonial home and the division of the sale proceeds in a stated proportion.

3 The agreement also expressed the parties' consent to declarations being made as to their entitlement to other property. The document stated that the parties acknowledged that it was a settlement pursuant to the Property (Relationships) Act and was intended to operate in full and final settlement of all financial dealings between the parties arising out of their relationship.

4 The proceedings commenced by the present defendant in 2007 were heard in February this year by Austin J. His Honour declared that the agreement was valid and binding and made a declaration as to the beneficial interests of the parties. In the course of Austin J's reasons, his Honour observed that the only…

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 Henry v Ford

Details

AGLC: Henry v Ford [2009] NSWSC 1253
Case: [2009] NSWSC 1253
Decision Date: 30 October 2009

CaseChat Overview and Summary

In the case of Henry v Ford, the plaintiff, Henry, sought relief in proceedings against Ford, the defendant. The dispute involved claims for damages and other remedies, which Henry argued should have been pursued through a cross-claim in prior litigation. Ford applied to have Henry’s claims struck out and for summary dismissal, contending that Henry should have raised her claims as a cross-claim in the earlier proceedings. The legal issues before the court included whether Henry’s failure to bring a cross-claim in the prior proceedings was justifiable and whether the reasons for that failure could be properly assessed in the context of the summary dismissal application.

The court determined that the reasons for Henry’s failure to bring a cross-claim and the reasonableness of her position could not be properly adjudicated on the basis of a summary dismissal application. The court held that such an assessment required a more comprehensive examination of the facts and circumstances, which was not suitable for the summary dismissal procedure. The court further noted that the application for summary dismissal was an inappropriate mechanism to determine the validity of Henry's reasons for not bringing a cross-claim in the earlier proceedings. Consequently, the application to strike out and for summary dismissal was dismissed.

Orders