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Kelly v Hilton

Kelly v Hilton

Case [2021] WASC 369 26 July 2021

Civil Litigation & Procedure

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   KELLY -v- HILTON [2021] WASC 369
CORAM:   STRK J
HEARD:   26 JULY 2021
DELIVERED          :   26 JULY 2021
PUBLISHED           :   26 OCTOBER 2021
FILE NO/S:   CIV 2228 of 2020
BETWEEN:   ALLAN JOHN KELLY
First Plaintiff
ALLAN JOHN KELLY AS TRUSTEE FOR THE KELLY FAMILY TRUST
Second Plaintiff
XGS PTY LTD AS TRUSTEE FOR THE KELLY SUPERANNUATION FUND
Third Plaintiff
DEBNAL PTY LTD
Fourth Plaintiff
AND
JOHN CHARLES HILTON
Defendant

Catchwords:

Practice and procedure - Application for summary judgment made by the defendant - Leave required to bring the application out of time - Whether the defendant has a good or complete defence on the merits - Turns on own facts

Legislation:

Australian Consumer Law
Australian Consumer Law (WA)
Rules of the Supreme Court 1971 (WA), O 16(1)(a)

Result:

Leave to bring the application out of time granted
Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	S Penglis SC & S B Nadilo
Second Plaintiff	:	S Penglis SC & S B Nadilo
Third Plaintiff	:	S Penglis SC & S B Nadilo
Fourth Plaintiff	:	S Penglis SC & S B Nadilo
Defendant	:	D J Pratt

Solicitors:

First Plaintiff	:	HHG Legal Group
Second Plaintiff	:	HHG Legal Group
Third Plaintiff	:	HHG Legal Group
Fourth Plaintiff	:	HHG Legal Group
Defendant	:	Bennett + Co

Case(s) referred to in decision(s):

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-434
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) CLR 256
Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
Butler v St John of God Health Care Inc [2008] WASCA 174
Dey v Victorian Railway Commissioners (1949) CLR 62
Gerovich v Gerovich [2018] WASC 153
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112
Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 920512, 12 October 1992)
Karam v ANZ Banking Group Ltd [2001] NSWSC 709
Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260
Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Zaghloul v Bayly [2021] WASCA 125

STRK J:

On 26 July 2021, I heard an application for summary judgment made by John Charles Hilton pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 16 r 1(1)(a), alternatively pursuant to the inherent jurisdiction of the court. By the application, Mr Hilton sought leave to bring the application out of time and for judgment to be entered in his favour against Allan John Kelly in his own capacity, and Mr Kelly as trustee for the Kelly Family Trust (that is, against Mr Kelly as the first plaintiff and as the second plaintiff in this proceeding). While Mr Kelly neither consented to nor…

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 Kelly v Hilton

Details

AGLC: Kelly v Hilton [2021] WASC 369
Case: [2021] WASC 369
Decision Date

CaseChat Overview and Summary

In Kelly v Hilton, the defendant, John Charles Hilton, applied for summary judgment against the plaintiffs, Allan John Kelly and associated entities, alleging misleading and deceptive conduct under the Australian Consumer Law. Hilton's application hinged on a Settlement Deed between Kelly and Riversgold Limited, which purportedly released Hilton from all claims arising from Kelly's employment. The court had to determine if Hilton had a complete defence based on the Settlement Deed.

The key issue was the interpretation of the Settlement Deed's release clause, which broadly defined 'Claims' as those arising from the contract, employment, termination, proceedings, and acts or omissions of the parties. Hilton argued that the Settlement Deed covered Kelly's claims against him, while Kelly contended the release was limited to employment-related disputes between him and Riversgold.

The court found that Kelly's interpretation of the Settlement Deed was arguable. The Settlement Deed's terms and context suggested it was intended to settle disputes about employment and associated proceedings, not broader claims against Hilton. The court also considered the potential for equity to intervene if Kelly's interpretation prevailed. Given the uncertainty in interpreting the Settlement Deed and the potential for equity to assist Kelly, the court dismissed Hilton's application for summary judgment.

The court granted Hilton leave to bring the application out of time but dismissed the application itself, finding that it was not clear that Kelly's claims must fail. The matter would proceed to trial to determine the true scope and effect of the Settlement Deed.

Orders