Newman v Scook - [2003] WADC 73

NEWMAN -v- SCOOK & ANOR [2003] WADC 73

Last Update: 09/04/2003

NEWMAN -v- SCOOK & ANOR [2003] WADC 73
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 73
Case No:	CIV:2695/2002	Heard:	7 & 14 MARCH 2003
Coram:	MARTINO DCJ	Delivered:	27/03/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	5	Judgment Part:	1 of 1
Result:	Appeal allowed Second defendant given leave to defend
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	WALLY NEWMAN DEAN GEORGE SCOOK CAROL NORMA HARDIE
Catchwords:	Practice Appeal from decision of Registrar Plaintiff's application for summary judgment
Legislation:	Nil
Case References:	Fancourt & Anor v Mercantile Credits Limited (1983) 154 CLR 87 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Phillips Fox (a firm) v Westgold Resources NL & Ors [2000] WASCA 85 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Heppingstone v Stewart (1910) 12 CLR 126 Re Morris Catering (Australia) Pty Ltd (1993) 11 ACLC 919 Re Quatrovision Pty Ltd (In Liq) (1982) 1 ACLC 105

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : NEWMAN -v- SCOOK & ANOR [2003] WADC 73 CORAM : MARTINO DCJ HEARD : 7 & 14 MARCH 2003 DELIVERED : 27 MARCH 2003 FILE NO/S : CIV 2695 of 2002 BETWEEN : WALLY NEWMAN

Plaintiff

AND

DEAN GEORGE SCOOK

First Defendant

CAROL NORMA HARDIE

Second Defendant

Catchwords:

Practice - Appeal from decision of Registrar - Plaintiff's application for summary judgment

Legislation:

Nil

(Page 2)

Result:

Appeal allowed
Second defendant given leave to defend

Representation:

Counsel:

Plaintiff : Mr S V Forbes

First Defendant : No appearance

Second Defendant : Mr H R Robinson

Solicitors:

Plaintiff : Paiker & Overmeire

First Defendant : No appearance

Second Defendant : Haydn Robinson

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

Fancourt & Anor v Mercantile Credits Limited (1983) 154 CLR 87
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Phillips Fox (a firm) v Westgold Resources NL & Ors [2000] WASCA 85

Case(s) also cited:

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549
Heppingstone v Stewart (1910) 12 CLR 126
Re Morris Catering (Australia) Pty Ltd (1993) 11 ACLC 919
Re Quatrovision Pty Ltd (In Liq) (1982) 1 ACLC 105

(Page 3)

1 MARTINO DCJ: This is an appeal by the second defendant against a decision of Registrar Kingsley delivered on 14 January 2003 granting the plaintiff's application for summary judgment against the second defendant in the sum of $69,000 plus interest. The Registrar's reasons referred to the plaintiff's application being against both defendants, that was an error.

2 The hearing before me was a re-hearing of the plaintiff's application for summary judgment. On the hearing of the appeal the second defendant filed an affidavit containing matters of evidence that were not before the Registrar. Because the appeal is a re-hearing the parties are permitted to adduce further evidence: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.

3 Summary…

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 Newman v Scook

Details

AGLC: Newman v Scook [2003] WADC 73
Case: [2003] WADC 73
Decision Date: 27 MARCH 2003

CaseChat Overview and Summary

The case of Newman v Scook involved the plaintiff seeking summary judgment against the second defendant in a legal dispute. The nature of the dispute centred around the interpretation of contractual obligations and potential breaches. The case was heard in the court of appeal, where the plaintiff had previously sought to have the matter resolved without a full trial through the application for summary judgment. The second defendant opposed this application, arguing that there were genuine issues of fact that needed to be determined at a trial.

The primary legal issues before the court were whether the plaintiff had established a prima facie case for summary judgment and whether there were any genuine triable issues that should preclude the granting of such judgment. The court needed to assess the strength of the plaintiff's evidence and determine if it was sufficient to warrant a summary judgment in their favour. Additionally, the court had to consider whether the second defendant's opposition raised any material facts that could defeat the plaintiff's claim.

In delivering its judgment, the court found that the plaintiff had not conclusively demonstrated that there were no genuine triable issues. The court emphasised that the plaintiff's evidence, while potentially persuasive, did not eliminate all reasonable doubt regarding the existence of a contractual breach. The second defendant's opposition contained sufficient material to suggest that there were genuine factual disputes that needed to be resolved at a trial. As a result, the court allowed the appeal and granted the second defendant leave to defend the action. This outcome ensured that the case would proceed to a full trial, where both parties could present their evidence and arguments in detail.

Orders

Orders of the court

Appeal allowed

Second defendant given leave to defend

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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