Jackson v Symonds - [2005] NSWSC 228

CITATION:
Jackson v Symonds & Anor [2005] NSWSC 228

HEARING DATE(S): 17 March 2005

JUDGMENT DATE :

22 March 2005

JUDGMENT OF:
Simpson J

DECISION:
statement of claim an abuse of process; struck out in part; leave to file an amended statement of claim

CATCHWORDS:
application for summary disposal - application for leave to amend originating process - circumstances of revocation of Deed - identical claims in contract and in tort - limitation period

LEGISLATION CITED:
Family Law Act 1975 s 87
Limitation Act 1969, s14
SCR Part 13 rule 5, Part 15 rule 26

CASES CITED:
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125
Wilson v Rigg [2002] NSWCA 246, unreported, 26 July 2002

PARTIES:
Emma Ruth Jackson - Plaintiff
Mark Phillip Symonds - 1st Defendant
Ian Ross Pratt - 2nd Defendant

FILE NUMBER(S):
SC 20060/03

COUNSEL:
Mr Ian Harrison SC with Ms Dominique Hogan-Doran - Plaintiff
Mr Paul Brereton SC with Mr Scott Nixon - 1st Defendant
Mr Michael Fordham - 2nd Defendant

SOLICITORS:
Uther Webster and Evans - Plaintiff
Hunt and Hunt Lawyers - 1st Defendant
Minter Ellison Lawyers - 2nd Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Tuesday 22 March 2005

20060/03 Emma Ruth Jackson v Mark Phillip Symonds & Anor
JUDGMENT: (i) on application for summary disposal;

(ii on application for leave to amend originating process

1 HER HONOUR: The principal proceedings were commenced by statement of claim filed on 10 March 2003. The most recent version of the plaintiff’s claim is contained in a Further Amended Statement of Claim (“FASC”), filed on 15 July 2004. That is a document which extends to 62 substantive paragraphs, over 37 closely typed pages. In the FASC six defendants are named, of whom only the first and second need here be mentioned. The proceedings against the third to sixth defendants have been resolved.

2 It is unnecessary to refer extensively to the allegations made in the FASC. So far as material for present purposes, the plaintiff seeks to prove the following.

3 In 1996 the plaintiff was a litigant in proceedings under the Family Law Act 1975 (“the Act”) brought in the Family Court of Australia (“FCA”) involving a claim for the allocation or reallocation of property interests of herself and her former husband. She was advised and represented by the first defendant, Mark Phillip Symonds, a solicitor. She retained and took the advice of the second defendant, who was an accountant. On 3 September 1996 the plaintiff and her former husband resolved their disputes over property and entered into a maintenance agreement pursuant to s87(1) of the Act. The agreement was formulated into a Deed. Pursuant to s87(3) of the Act, the FCA on 3 September 1996 approved the agreement contained in the Deed. The agreement required the plaintiff’s former husband to pay her a specified sum of money. By s87(4)(b) of the Act the effect of the…

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 Jackson v Symonds

Details

AGLC: Jackson v Symonds [2005] NSWSC 228
Case: [2005] NSWSC 228
Decision Date: 22 March 2005

CaseChat Overview and Summary

The applicant, Jackson, sought summary disposal of a proceeding against the respondent, Symonds. The proceedings arose from a dispute over the revocation of a Deed, which was central to claims both in contract and in tort. The respondent had applied for leave to amend the originating process to include additional particulars of the circumstances surrounding the revocation of the Deed. Jackson opposed the application, arguing that it was an attempt to circumvent the limitation period and that the claims in tort were identical to those in contract. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the respondent's application for leave to amend the originating process should be granted, given the contention that it sought to add new claims outside the limitation period and that the claims in tort were essentially the same as those in contract. The court had to consider whether the amendment would add a new cause of action or merely clarify existing claims, and if the proposed amendment would prejudice the applicant in maintaining their defence.

The court held that the application for leave to amend should be dismissed. It found that the proposed amendment was an attempt to circumvent the limitation period by adding new causes of action that were not previously disclosed. Additionally, the court ruled that the claims in tort were identical to those in contract, and allowing the amendment would not clarify but rather duplicate the existing claims. Consequently, the court concluded that the amendment would not serve any just purpose and would prejudice the applicant's ability to defend the proceeding. The court ordered that the application for leave to amend be dismissed, and no further amendments would be allowed.

The final orders of the court were that the application for leave to amend the originating process was dismissed, and no further amendments were permitted. The court's decision effectively precluded the respondent from adding new particulars regarding the revocation of the Deed and reinforced the limitation periods applicable to the claims.

Orders