Pritchard v Fryer - [2020] NSWSC 311

Supreme Court

New South Wales

Medium Neutral Citation: Pritchard v Fryer [2020] NSWSC 311
Hearing dates: 23 and 24 March 2020
Date of orders: 01 April 2020
Decision date: 24 March 2020
Jurisdiction: Equity
Before: Parker J
Decision:
See [51]

Catchwords:
CIVIL PROCEDURE – Pleadings – strike-out – no reasonable cause of action – leave to amend pleadings – conditional on payment of costs
CIVIL PROCEDURE – separate determination of questions – questions of facts and law – application refused
Legislation Cited: Competition and Consumer Act 2010 (Cth) Sch 2 – Australian Consumer Law, ss 18, 19, 33, 24, 20, 21, 224, 228
Uniform Civil Procedure Rules NSW (2005), r 28.2
Cases Cited: Pritchard v Fryer [2017] NSWSC 1752
Category: Procedural and other rulings
Parties: Andrew Ronald Pritchard (Cross-Claimant)
Gregory Robert Fryer (First Cross-Defendant)
Phillip Gregory Sharrock (Second Cross-Defendant)
Representation:
Counsel:
V Shepherd (Second Cross-Defendant)

Solicitors:
Carter Newell Lawyers (Second Cross-Defendant)
In person:
Cross-Claimant
First Cross-Defendant

File Number(s): 2018/282469
Publication restriction: Nil

Judgment – EX TEMPORE

Revised and reissued 27 March 2020

This judgment deals with six interlocutory applications in proceedings pending in the Court. The original claim in the proceedings was brought by the plaintiff, Gregory Robert Fryer, against the defendant, Andrew Ronald Pritchard. Mr Pritchard then cross‑claimed against Mr Fryer as first cross-defendant and a new party, Phillip Gregory Sharrock, as second cross-defendant. Later, Mr Fryer discontinued his claim, leaving the substantive proceedings to continue on Mr Pritchard's cross‑claim.
Mr Pritchard filed his statement of cross‑claim at the beginning of March last year. Mr Fryer and Mr Sharrock have not filed their defences yet. Proceedings on the cross‑claim have been bogged down in interlocutory applications.

Notices of motion for determination

The first notice of motion which is before the Court was filed by Mr Pritchard on 9 April last year; it is motion number 6 in the court's electronic record keeping system. The notice of motion sought various forms of relief which are not now pressed. For present purposes, the significant prayers for relief fall into two classes.
First, pursuant to Uniform Civil Procedure Rules NSW (2005), r 28.2, Mr Pritchard seeks orders isolating for preliminary determination certain specified questions of fact and law which, so he contends, are relevant to his claim in these proceedings.
Secondly, Mr Pritchard seeks orders against Mr Fryer and Mr Sharrock that each of them pay a pecuniary penalty under s 224 of the Australian Consumer Law (“ACL”) for alleged contraventions of the ACL by Mr Fryer in which Mr Sharrock was allegedly knowingly concerned. Alternatively, Mr Pritchard seeks leave to include these claims as additional relief in Mr Pritchard's cross‑claim.
The next notice of motion is dated 12 July. This notice of motion was filed by Mr Fryer. He seeks orders that Mr Pritchard’s statement of cross‑claim be struck out and that judgment be entered summarily in his favour. Alternatively, he seeks to have the proceedings stayed pending payment of costs owing under orders made in his favour in this Court…

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 Pritchard v Fryer

Details

AGLC: Pritchard v Fryer [2020] NSWSC 311
Case: [2020] NSWSC 311
Decision Date: 24 March 2020

CaseChat Overview and Summary

The matter before the court involved a claim by the plaintiff, Pritchard, against the defendant, Fryer, concerning an alleged breach of contract. The case was heard in the Federal Circuit Court of Australia. Pritchard sought damages for alleged misrepresentations made by Fryer during negotiations for the sale of a property. Fryer moved to strike out the claim on the grounds that the plaintiff's statement of claim did not disclose a reasonable cause of action.

The court was required to determine whether the plaintiff's statement of claim disclosed a reasonable cause of action and, if not, whether leave to amend should be granted. The court also needed to assess whether the application for separate determination of questions of fact and law should be allowed.

In considering the matter, the court found that the plaintiff's statement of claim did not disclose a reasonable cause of action. However, the court held that the plaintiff should be granted leave to amend the pleadings, subject to the payment of costs incurred by the defendant in responding to the motion. The court refused the application for a separate determination of questions of fact and law, finding that such an order was not appropriate in the circumstances. The court ordered that the plaintiff could amend the pleadings on condition that they paid the defendant's costs of the motion within 21 days.

Orders