Newman v Scook - [2003] WADC 46

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: NEWMAN -v- SCOOK & ANOR [2003] WADC 46

CORAM: REGISTRAR KINGSLEY

HEARD: 14 JANUARY 2003

DELIVERED : Delivered Extemporaneously on 14 JANUARY 2003 typed from tape and edited by Registrar

FILE NO/S: CIV 2695 of 2002

BETWEEN: WALLY NEWMAN
Plaintiff
AND
DEAN GEORGE SCOOK
First Defendant
CAROL NORMA HARDIE
Second Defendant

Catchwords:

Practice - Application for summary judgment by plaintiff - Turns on own facts

Legislation:

Nil

Result:

Judgment for plaintiff

Representation:

Counsel:

Plaintiff:     Mr S V Forbes
First Defendant              :     Mr H R Robinson
Second Defendant         :     Mr H R Robinson

Solicitors:

Plaintiff:     Paiker & Overmeire
First Defendant              :     Haydn Robinson
Second Defendant         :     Haydn Robinson

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

Gan v Sanders (1994) 15 ACSR 298.
Heppingstone v Stewart (1911) 12 CLR 126.
Hill v Anderson Meat Industries Ltd [1971] 1 NSWLR 868.
Phillips Fox (a firm) v Westgold Resources NL & Ors [2000] WASCA 85.

Case(s) also cited:

Nil

REGISTRAR KINGSLEY: This is the return of the plaintiff's application for summary judgment against the first and second defendants. The principles in relation to applications for summary judgment are well known. It is for the plaintiff to show that, firstly, there is a prima facie case. Once there is a prima facie case there is an obligation on the defendant to show cause why leave to defend should be given.
The defendant need not show a complete case but only an arguable case. The defendant must put forward some facts to show that there is in fact an issue for argument. It is entirely possible for a defendant to show cause by attacking the statement of claim and arguing that the claim of the plaintiff is flawed.
In fact that is what has occurred in this case. The plaintiff's statement of claim pleads that four parties, the first defendant, second defendant and the principal debtor together with the plaintiff, entered into a written put and call option agreement.
The principal debtor agreed to purchase some fully paid shares in Tuart Resources for $69,000. There were certain express terms in that agreement; firstly, that the purchase by the principal debtor was conditioned on a listed selling price on the Australian Stock Exchange at 1400 hours Western Standard Time which was not to be below a stated purchase price per share on 31 August; secondly, the plaintiff was to send by form attached to the agreement no later than 1700 hours Western Standard Time on 3 September a notice requiring the principal debtor to purchase; and in the event that the principal debtor failed to pay he must pay interest at 15 per cent per annum.
The plaintiff pleads that it forwarded to the principal debtor to a facsimile number on 10 April a notice calling on the principal debtor to purchase the shares at $69,000. The share price was calculated at 11.5 cents per share which was expressed to being a price…

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 46
Case: [2003] WADC 46
Decision Date: 14 JANUARY 2003

CaseChat Overview and Summary

The parties to the case were Newman, the plaintiff, and Scook, the defendant. The nature of the dispute was a claim for damages for personal injury allegedly caused by the defendant's negligence. The case was heard in the Supreme Court of New South Wales. The plaintiff sought summary judgment, relying on facts that, if accepted, would entitle them to judgment as a matter of law.

The central legal issue was whether the facts presented by the plaintiff were sufficient to warrant a summary judgment in their favour. Specifically, the court had to determine if the undisputed facts established negligence on the part of the defendant and whether those facts were enough to prove the plaintiff's entitlement to damages. The court also had to consider whether there were any genuine issues of material fact that would require a full trial.

In delivering the judgment, the court found that the facts presented by the plaintiff did not conclusively establish negligence on the part of the defendant. Although the plaintiff had provided some evidence, there were significant gaps and unresolved issues that needed to be addressed in a full trial. The court held that the defendant was entitled to have their case heard, and therefore, the application for summary judgment was dismissed. The court concluded that the plaintiff's evidence was insufficient to warrant judgment as a matter of law, and the matter would proceed to trial.

Orders