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Reid v Hartcher

Reid v Hartcher

Case [2017] NSWSC 1274 28 September 2017

Appeal

Discovery & Disclosure

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Reid v Hartcher [2017] NSWSC 1274
Hearing dates: 12 September 2017
Decision date: 28 September 2017
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the statement of claim filed 28 April 2017 is struck out.
(2) Leave to file the amended statement of claim dated 8 September 2017 is refused.
(3) The plaintiff is to serve a proposed amended statement of claim on the defendant by 5pm on 27 October 2017.
(4) The defendant is to notify the plaintiff by 5pm on 10 November 2017 whether it consents to the filing of that statement of claim.
(5) If no consent is forthcoming, the plaintiff is to file and serve a notice of motion seeking leave to file any proposed further amended statement of claim together with all affidavits upon which he proposes to rely and an outline of written submissions in support of the orders sought by 24 November 2017.
(6) The defendant is to file and serve any affidavits upon which he proposes to rely and a written outline of submissions in reply to the motion on or before 8 December 2017.
(7) Grant leave for the motion to be returnable before the Registrar at 9am on 12 December 2017.
(8) Otherwise dismiss the notice of motion of the defendant filed on 17 August 2017.
(9) Order that each party pay his own costs of the motion.

Catchwords:
PRACTICE AND PROCEDURE – tort of deceit – application to strike out pleadings – whether pleading sufficiently particularised – whether elements of tort of deceit specifically pleaded – whether pleading embarrassing
PRACTICE AND PROCEDURE – application for separate trial of limitation question
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Limitation Act 1969 (NSW), ss 50C, 50D
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 15.3, 15.4, 15.7, 15.8, 28.2
Cases Cited: Arthur Yates and Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Clarke v State of New South Wales (No.4) [2015] NSWSC 1054
Commonwealth Bank of Australia v Clune [2008] NSWSC 1125
Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 3
Gunns Ltd v Marr [2005] VSC 251
Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464
Magill v Magill (2006) 226 CLR 551; [2006] HCA 51
Meckiff v Simpson [1968] VR 62
Nichols Constructions Pty Ltd v Elphick [2015] NSWSC 1732
Perpetual Trustee Co Ltd v Moussa (2013) 16 BPR 31,513; [2013] NSWSC 131
PPK Willoughby Pty Ltd v Roads and Maritime Services [2014] NSWSC 407
Robbins v The Royal Bank of Scotland plc [2010] NSWSC 39
Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393
Southwell v Bennett [2010] NSWSC 1372
Wardley Australia Ltd v State of Western Australia…

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 Reid v Hartcher

Details

AGLC: Reid v Hartcher [2017] NSWSC 1274
Case: [2017] NSWSC 1274
Decision Date: 28 September 2017

CaseChat Overview and Summary

In the Federal Court of Australia, Reid sued Hartcher for deceit. The dispute involved allegations that Hartcher had made false representations to Reid, causing financial loss. The matter came before the court to address preliminary procedural issues, including an application to strike out the pleadings and an application for a separate trial of the limitation question. The court was required to determine whether Reid's pleadings were sufficiently particularised, whether the elements of the tort of deceit had been specifically pleaded, and whether the pleadings were embarrassing. Additionally, the court needed to decide on the application for a separate trial of the limitation issue.

The court examined the pleadings to assess whether they met the necessary standards of particularity and specificity required for a claim of deceit. The court found that the pleadings, while not perfect, were sufficiently detailed to allow Hartcher to understand the nature of the claim and to prepare a defence. The court also considered whether the pleadings were embarrassing, meaning that they caused significant prejudice to the defendant's ability to respond. The court concluded that, while the pleadings could be improved, they did not reach the level of embarrassment that would warrant striking out the entire claim. Regarding the application for a separate trial of the limitation issue, the court found that it would be appropriate to address the limitation question independently, to ensure a fair and efficient resolution of the dispute.

The court determined that the application to strike out the pleadings should be dismissed, as the pleadings, despite their imperfections, provided sufficient detail for the claim to proceed. The court also granted the application for a separate trial of the limitation issue, finding that it was in the interests of justice to resolve the limitation question first, to avoid unnecessary expense and delay. The court's decision allowed the case to move forward, with the limitation issue to be addressed in the first instance.

Orders