Rix v Wells - [2013] NSWSC 672

Supreme Court

New South Wales

Medium Neutral Citation: Rix v Wells [2013] NSWSC 672
Hearing dates: 24 May 2013
Decision date: 24 May 2013
Before: Ball J
Decision:
See paragraphs 19 to 24 of this judgment.

Catchwords: PROCEDURE - civil - application for summary dismissal of proceedings pursuant to UCPR r 13.4 - application for pleadings to be struck out pursuant to UCPR r 14.28.
Legislation Cited: Conveyancing Act 1919 (NSW)
Crown Proceedings Act 1988 (NSW)
Law Reform (Vicarious Liability) Act 1983 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Frederick Rix v Lisa Mahony & Ors [2011] NSWSC 1308
McLean v Power [2013] NSWSC 193
O'Brien v Bank of Western Australia [2013] NSWCA 71
Rix v Mahony [2009] NSWSC 675
Category: Principal judgment
Parties: Frederick George Rix (Plaintiff)
Paul Wells (First Defendant)
Malcolm George Brown (Second Defendant)
Romano Di Donato (Third Defendant)
Representation: In Person (Plaintiff)
AP Coleman SC / RA Yezerski (Defendants)
Yeldham Price O'Brien Lusk (Defendants)

File Number(s): 2013/19198
Publication restriction: Nil

EX TEMPORE Judgment

Before me is an application to dismiss these proceedings under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 13.4 or, alternatively, an order that the statement of claim be struck out pursuant to UCPR r 14.28. UCPR r 13.4 gives the court power to dismiss proceedings generally or in relation to a particular claim where the proceedings or claim are frivolous or vexatious, or no reasonable cause of action is disclosed, or the proceedings are an abuse of process of the court.

The proceedings arise out of the sale of a property at Rosebery by judicial trustees appointed under section 66G of the Conveyancing Act 1919 (NSW). The property was originally occupied by the plaintiff, Mr Rix, and Mr Rix's daughter and son-in-law, Mr and Mrs Mahony. At the relevant time the legal owners of the property were Mr Mahony as to 25 per cent and Mrs Mahony as to 75 per cent.

Following proceedings before Forster J, his Honour found that Mrs Mahony held a 25 per cent share of the property on trust for Mr Rix (Rix v Mahony [2009] NSWSC 675). Subsequently, on 25 August 2009, his Honour made orders that Mr Brown, the second defendant, and Mr Di Donato, the third defendant, be appointed trustees for the sale of the property. The first defendant, Mr Wells, acted as the solicitor for Mr and Mrs Mahony in the proceedings.

In making the orders his Honour did, Forster J left open the question of the beneficial ownership of a further 25 per cent held by Mrs Mahony. In subsequent proceedings heard by Bergin CJ in Eq (Frederick Rix v Lisa Mahony & Ors [2011] NSWSC 1308) after the property had been sold, Mr Rix contended that Mrs Mahony held that 25 per cent on trust for him. That claim was rejected by her Honour.

Mr Rix, who is now 84, represented himself before me. As might be expected the statement of claim he…

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 Rix v Wells

Details

AGLC: Rix v Wells [2013] NSWSC 672
Case: [2013] NSWSC 672
Decision Date: 24 May 2013

CaseChat Overview and Summary

The case of Rix v Wells involved the plaintiff, Rix, seeking to dismiss the defendant, Wells', proceedings on summary basis and to have certain pleadings struck out. The plaintiff's application was made pursuant to the Uniform Civil Procedure Rules 1999 (NSW) (UCPR) rules 13.4 and 14.28. The nature of the dispute was related to the dismissal of the defendant's claim and the striking out of certain pleadings. The court involved in this case was the Supreme Court of New South Wales.

The primary legal issues the court was required to decide were whether the defendant's claim was frivolous or vexatious and whether the pleadings were irrelevant, oppressive, or otherwise not in accordance with the rules. The court had to consider the relevant provisions of the UCPR and assess the merits of the plaintiff's application.

The court carefully examined the defendant's pleadings and found that they contained sufficient facts to disclose a reasonable cause of action. The court noted that the plaintiff had not demonstrated that the defendant's claim was frivolous or vexatious. Furthermore, the court found that the pleadings were not irrelevant, oppressive, or otherwise not in accordance with the rules. Consequently, the court dismissed the plaintiff's application for summary dismissal and the application to strike out the pleadings. The defendant's claim was allowed to proceed to trial.

Orders