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McDonald v Grech

McDonald v Grech

Case [2012] NSWSC 717 27 June 2012

Limitation Periods

Appeal

Summary Judgment

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: McDonald v Grech; Bank of Western Australia Ltd v McDonald [2012] NSWSC 717
Hearing dates: 12 June 2012
Decision date: 27 June 2012
Jurisdiction: Equity Division - Duty List
Before: Ward J
Decision:
Application for summary dismissal/strike-out dismissed

Catchwords: PRACTICE AND PROCEDURE - application for strike-out/summary dismissal - rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW) - whether claims statute barred by Limitation Act 1969 (NSW) - where limitation defences raise issues of fact - whether proceedings are futile either on the basis that the claims are untenable on their face or due to deficiencies in the plaintiffs' evidence - HELD - application dismissed
Legislation Cited: Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aussie Ideas Pty Ltd v Tunwind Pty Ltd [2006] NSWCA 286
Batistatos v Roads and Traffic Authority of NSW [2006] 226 CLR 256
Beach Petroleum NL v Abbott Tout Russell Kennedy (1999) 48 NSWLR 1; [1999] NSWCA 408
Belan v Casey (2003) 57 NSWLR 670
Breen v Williams (1996) 186 CLR 71
Brimson v Rocla Concrete Pipes Limited [1982] 2 NSWLR 937
Brown v NSW Trustee & Guardian [2011] NSWSC 1203
Commonwealth v Cornwell (2007) 229 CLR 519
Cox v Journeaux [No 2] (1935) 52 CLR 713
Crittenden v Freehill Hollingdale and Page (unreported, Supreme Court of Victoria, Eames J, 19 August 1994)
David v David [2009] NSWCA 8
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Forster v Outred & Co (a firm) [1982] 2 All ER 753
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Gibson Motorsport Merchandise Pty Limited v Forbes (2006) 149 FCR 569
Hammond v Minister of Works (1992) 8 WAR 505
Henderson v Merrett Syndicates Limited [1995] 2 AC 145
Hendriks v McGeoch [2008] NSWCA 53
Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41
Jobbins v Capel Court Corporation Ltd (1989) 25 FCR 226
Langford v Reddy [2012] NSWSC 289
Larking v Great Western (Nepean) Gravel Ltd (In Liq) (1940) 64 CLR 221
Michael Wilson & Partners Limited v Robert Colin Nicholls [2009] NSWSC 721
Norbeg v Wynrib [1992] 2 SCR 226
O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204
Paul Ernest Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455
Permanent Custodians Ltd and Anor v King and Ors [2010] NSWSC 509
Pilmer v Duke Group Limited (in Liq) (2001) 207 CLR 165
Rawley Pty Limited v Bell (No 2) (2007) 61 ACSR 648
Scarcella v Lettice (2000) 51 NSWLR 302
Seymour v Seymour (1996) 40 NSWLR 358
Shaw v State of New South Wales [2012] NSWCA 102
Skalkos v Smiles [2006] NSWSC 192
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Wardley Australia v WA (1992) 175 CLR 514
Webster v Lampard (1993) 170 CLR 598
Wickstead v Brown (1992) 30 NSWLR 1
Winnote Pty Ltd v Page (2006) 68 NSWLR 531

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 McDonald v Grech

Details

AGLC: McDonald v Grech [2012] NSWSC 717
Case: [2012] NSWSC 717
Decision Date: 27 June 2012

CaseChat Overview and Summary

The case of McDonald v Grech involved a dispute between the plaintiff, Mr. McDonald, and the defendant, Mr. Grech. The nature of the dispute was a legal challenge regarding the validity of Mr. McDonald's claims against Mr. Grech. The matter was heard in the Local Court of New South Wales. Mr. McDonald sought to enforce claims that Mr. Grech had allegedly breached contractual terms and engaged in other wrongdoings, while Mr. Grech argued that the claims were statute-barred under the Limitation Act 1969 (NSW).

The primary legal issue before the court was whether Mr. McDonald's claims were statute-barred, and if so, whether the proceedings should be struck out or dismissed as futile. The court had to consider whether the limitation defences raised issues of fact that precluded summary dismissal under rules 13.4 and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). The court also had to determine whether the proceedings were futile either because the claims were untenable on their face or due to deficiencies in the plaintiff's evidence.

The court found that the limitation defences raised issues of fact that could not be resolved on a summary basis. Consequently, the court held that the application for a strike-out or summary dismissal was inappropriate. The court determined that it was not tenable on the face of the claims that they were statute-barred, nor was it evident that the proceedings were futile due to deficiencies in the plaintiff's evidence. As a result, the application was dismissed, allowing the case to proceed to a full hearing.

Orders