Lee v Travers - [2009] NSWSC 398

CITATION: Lee v Travers & Ors [2009] NSWSC 398

HEARING DATE(S): 13 May 2009

JUDGMENT DATE :
29 May 2009

JURISDICTION: Equity

JUDGMENT OF: Bryson AJ at 1

DECISION: Dismiss the appeal with costs.

CATCHWORDS: PRACTICE and PROCEDURE - Summary Disposal UCPR 13.4 - Appeal from dismissal by Associate Judge of proceedings after Amended Statement of Claim filed purportedly under leave granted on earlier Summary Disposal Application - detailed review of alleged errors in exercise of discretion under UCPR 13.4. HELD - no error, appeal dismissed.

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Limitation Act 1969 (NSW)
Trade Practices Act 1965 (Cth)

CATEGORY: Consequential orders

CASES CITED: Dey v Victorian Railways Commission (1949) 78 CR 62
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125
Hillebrand v Council of the City of Penrith (2000) NSWSC 1058
House v R [1936] HCA 40
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Tresize v National Australia Bank Limited [2005] FCA 1095
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

PARTIES: Leonard John Lee (Plaintiff)
John Christopher Travers (First Defendant)
Gerald Joseph Travers (Second Defendant)

FILE NUMBER(S): SC 5008/07

COUNSEL: Ivan Griscti (Plaintiff)
Marcus Pesman (Defendants)

SOLICITORS: Herbert Greer (Plaintiff)
Henry Davis York (Defendants)

LOWER COURT JURISDICTION: Supreme Court (Associate Judge)

LOWER COURT FILE NUMBER(S): 5008/07

LOWER COURT JUDICIAL OFFICER : Macready AsJ

LOWER COURT DATE OF DECISION: 11.12.2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

FRIDAY 29 MAY 2009

5008/07 LEE v TRAVERS & ORS

JUDGMENT

1 HIS HONOUR: By Notice of Motion of 12 February 2009 the plaintiff appeals to a judge of the Equity Division from the order of Macready AsJ of 11 December 2008 which dismissed the proceedings with costs. The order was made in the second of two applications by the defendants for summary disposal under UCPR 13.4 and the Court’s inherent jurisdiction. I extended the time for Notice of Motion on appeal as delay was caused by misunderstanding. Extension was not contentious.

2 The plaintiff who was not then represented commenced the proceedings by filing his Statement of Claim on 16 October 2007. There were then three defendants, and they applied by Notice of Motion of 21 November 2007 for dismissal of the proceedings. Macready AsJ heard that Notice of Motion on 19 March 2008 and disposed of it on 30 April 2008 for reasons then stated. His Honour made these orders:

1. I strike out the Statement of Claim and dismiss the proceedings against the third defendant.

2. I give leave to the plaintiff to file and serve against the 1st and 2nd defendants a further Statement of Claim in accordance with the principles expressed in this judgment within 28 days of today’s date.

3 There were further orders relating to costs and procedure.

4 The reference to the principles expressed in the judgment can be understood from expressions in it particularly paragraphs 11 and 34. After reviewing the references in 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 Lee v Travers

Details

AGLC: Lee v Travers [2009] NSWSC 398
Case: [2009] NSWSC 398
Decision Date: 29 May 2009

CaseChat Overview and Summary

The matter of Lee v Travers was heard before the court, where the dispute centred on the dismissal of proceedings following the filing of an amended statement of claim after leave had been granted on a summary disposal application. The parties involved were Lee, the plaintiff, and Travers, the defendant. The case was brought before the court following an appeal against the dismissal ordered by an Associate Judge.

The primary legal issue before the court was whether the Associate Judge had erred in dismissing the proceedings under UCPR 13.4 after the amended statement of claim was filed. Specifically, the court needed to determine if there were any errors in the exercise of discretion by the Associate Judge in relation to the filing of the amended statement of claim and whether the dismissal was justified.

The court examined the circumstances surrounding the grant of leave for the summary disposal application and the subsequent filing of the amended statement of claim. It was noted that the leave was granted on the condition that no further applications for leave to amend would be made unless exceptional circumstances were present. The court held that the Associate Judge had not erred in dismissing the proceedings as the plaintiff had not demonstrated any exceptional circumstances warranting a deviation from the conditions of the initial leave granted. Consequently, the court found no basis to interfere with the Associate Judge's decision and dismissed the appeal.

The final orders of the court were that the appeal from the Associate Judge's decision was dismissed, and the dismissal of the proceedings remained in place. The court emphasised the importance of adhering to the conditions set for the grant of leave in summary disposal applications and reiterated the principle that such conditions must be strictly observed unless there are compelling reasons to the contrary.

Orders