Rix v Wells (No. 2) - [2013] NSWSC 1608

Supreme Court

New South Wales

Medium Neutral Citation: Rix v Wells (No. 2) [2013] NSWSC 1608
Hearing dates: 16 September, 30 October 2013
Decision date: 30 October 2013
Jurisdiction: Equity Division
Before: Darke J
Decision:
1. That the further amended statement of claim filed on 3 October 2013 be struck out pursuant to UCPR r 14.28.
2. That the further amended statement of claim filed on 14 October 2013 be struck out, either pursuant to UCPR r 14.28 or otherwise pursuant to UCPR r 4.15.
3. That the plaintiff pay the second and third defendants' costs of the notice of motion filed on 31 July 2013.

Catchwords:
PROCEDURE - summary disposal - whether sufficiently high degree of certainty regarding ultimate outcome - claims inadequately pleaded - distinction between existence of a reasonable cause of action and the pleading of a reasonable cause of action - where plaintiff self-represented - where plaintiff failed to comply with orders of the court to file and serve evidence in support of claim - application dismissed
PROCEDURE - pleadings - application to strike out statement of claim - statement of claim has tendency to cause prejudice, embarrassment or delay in the proceedings - statement of claim struck out - no leave to re-plead in present circumstances
Legislation Cited: Conveyancing Act 1919
Uniform Civil Procedure Rules 2005
Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
General Steel Industries Incorporated v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
ICM Agriculture Pty Ltd v Young [2009] FCA 109
Rix v Mahony [2009] NSWSC 675
Rix v Wells [2013] NSWSC 672
O'Brien v Bank of Western Australia Limited [2013] NSWCA 71
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
White Industries Australia Limited v Federal Commissioner of Taxation (2007) 160 FCR 298
Category: Procedural and other rulings
Parties: Frederick George Rix (Plaintiff)
Malcolm George Brown (Second defendant)
Romano Di Donato (Third defendant)
Representation: Counsel: AP Coleman SC with RA Yezerski (Second and Third Defendants)
Solicitors: Yeldham Price O'Brien Lusk

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

Judgment - Ex Tempore

HIS HONOUR: These proceedings were commenced by Mr Rix on 21 January 2013 by the filing of a statement of claim. Mr Rix is a pensioner, aged 85, who lives in a unit in Kingsford.

The first defendant, Mr Wells, is a solicitor who acted for Mr Rix's daughter and son-in-law, Mr and Mrs Mahony, in certain proceedings in this Court instituted by Mr Rix concerning the ownership of a property in Gardeners Road, Rosebery. I shall refer to that property as "the Property".

Those proceedings were heard by Forster J, who found, amongst other things, that a 25 per cent share of the property was held by Mrs Mahony on trust for Mr Rix (see Rix v Mahony [2009] NSWSC 675).

Subsequently, the second and third defendants, Mr Brown and Mr Di Donato, were appointed by order of this Court as trustees for…

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 (No. 2)

Details

AGLC: Rix v Wells (No. 2) [2013] NSWSC 1608
Case: [2013] NSWSC 1608
Decision Date: 30 October 2013

CaseChat Overview and Summary

In the case of Rix v Wells (No. 2), the matter was before the Supreme Court of New South Wales. The plaintiff, Rix, was self-represented and sought to pursue claims against the defendant, Wells. The dispute involved allegations of defamation, misuse of private information, and breach of confidence. The defendant applied to have the plaintiff's claims struck out, arguing that the statements of claim were inadequately pleaded and lacked a sufficiently high degree of certainty regarding the ultimate outcome. The defendant further submitted that the plaintiff had failed to comply with the court's orders to file and serve evidence in support of the claims.

The primary legal issues before the court were whether the plaintiff's claims were adequately pleaded and whether the court should strike out the statement of claim. The court considered the distinction between the existence of a reasonable cause of action and the pleading of a reasonable cause of action. The court held that the plaintiff's statement of claim had a tendency to cause prejudice, embarrassment, or delay in the proceedings and was therefore struck out. Additionally, the court found that there were no grounds to grant the plaintiff leave to re-plead in the present circumstances.

The court dismissed the application for summary disposal of the claims, finding that there was not a sufficiently high degree of certainty regarding the ultimate outcome. The court also found that the plaintiff's failure to comply with the orders of the court to file and serve evidence in support of the claim was a significant factor in its decision. Finally, the court struck out the statement of claim, finding that it had a tendency to cause prejudice, embarrassment, or delay in the proceedings. The court refused to grant the plaintiff leave to re-plead in the present circumstances.

Orders