Irons v Calleja - [2009] NSWSC 1224

CITATION: Irons v Calleja & ors [2009] NSWSC 1224

HEARING DATE(S): 26 October 2009

JUDGMENT DATE :
19 November 2009

JUDGMENT OF: R A Hulme J

DECISION: The second defendant's notice of motion is dismissed with costs.

CATCHWORDS: PROCEDURE - judgments and orders - application for summary dismissal or striking out

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CASES CITED: Agar v Hyde [2000] HCA 41; 201 CLR 552
Dey v Victorian Railways Commissioners (1949) 78 CLR 61
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Graham v Hall & Anor [2006] NSWCA 208; 67 NSWLR 135
Walton v Gardiner (1993) 177 CLR 378
Webster v Lampard (1993) 177 CLR 602

PARTIES: Merle Irons (Plaintiff)
John Calleja (First Defendant)
Royal Guardian Mortgage Corporation Pty Ltd (Second Defendant)
Martin Cooper (Third Defendant)

FILE NUMBER(S): SC 20442/08

COUNSEL: Mr A Rogers (Plaintiff)
Mr M W Young (Second Defendant)

SOLICITORS: Tsolakis Solicitors
Bransgroves Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

R A Hulme J

19 November 2009

20442/08 Irons v Calleja & ors
JUDGMENT

1 HIS HONOUR: This is an application by the second defendant, Royal Guardian Mortgage Corporation Pty Ltd (“RGMC”) for summary dismissal, alternatively striking out, of a statement of claim insofar as it concerns itself. It is alleged in the statement of claim that the first defendant, Mr John Callega, committed fraud in obtaining a loan of $580,000 purportedly on behalf of the plaintiff, Ms Merle Irons; that RGMC, a mortgage originator and manager, breached a duty to make enquiries about the loan application because it knew or ought to have known that the representation by Mr Callega that Ms Irons wanted the loan was false; and that the third defendant, Mr Martin Cooper, was responsible for attesting a signature on a statutory declaration that was purported to be Ms Irons’ when he did not see Ms Irons sign that document.

2 The defence filed by RGMC includes denials that Mr Callega made representations to RGMC; that Mr Callega provided loan applications to RGMC; that RGMC owed a duty to Ms Irons and that there was any breach of such a duty; that RGMC caused or contributed to any loss or damage by Ms Irons; and that Ms Irons suffered any loss or damage. It is also claimed that the proceedings against RGMC are barred because of the terms of settlement of a previous matter in which Ms Irons was a party.

3 Mr Callega has not taken any steps in the proceedings. Mr Cooper has filed a defence and a cross-claim against another person but they are irrelevant to the motion by RGMC.

The pleaded case for the plaintiff

4 It is the plaintiff’s case that on about 27 August 2002 Mr Callega fraudulently submitted a loan application to RGMC in which Ms Irons was nominated as the borrower without her knowledge. The allegation concerning RGMC is pleaded…

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 Irons v Calleja

Details

AGLC: Irons v Calleja [2009] NSWSC 1224
Case: [2009] NSWSC 1224
Decision Date: 19 November 2009

CaseChat Overview and Summary

The case of Irons v Calleja involved a dispute between the plaintiff, Irons, and the defendant, Calleja. The plaintiff sought to recover damages for a personal injury accident that occurred on the defendant's property. The matter was heard in the Supreme Court of New South Wales. The defendant moved for summary dismissal of the plaintiff's claim, arguing that the plaintiff's statement of claim failed to state a cause of action. The court was required to decide whether the plaintiff's statement of claim disclosed a reasonable cause of action against the defendant.

The court considered whether the plaintiff's statement of claim contained sufficient facts to establish a prima facie case against the defendant. The court held that the plaintiff's statement of claim disclosed a reasonable cause of action against the defendant. The court found that the plaintiff had alleged sufficient facts to establish the defendant's liability for the accident, including the defendant's failure to take reasonable steps to ensure the safety of the premises. The court dismissed the defendant's application for summary dismissal, finding that the plaintiff's statement of claim was sufficient to warrant a trial.

The court's decision in Irons v Calleja highlights the importance of ensuring that a statement of claim contains sufficient facts to establish a prima facie case against the defendant. The court held that the plaintiff's statement of claim in this case was sufficient to warrant a trial, and dismissed the defendant's application for summary dismissal. The court's decision underscores the need for careful drafting of statements of claim to ensure that they contain all necessary facts to support the plaintiff's case.

Orders