Searle v Kearns - [2001] NSWSC 679

CITATION: Searle v Kearns & Ors [2001] NSWSC 679

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20611/00

HEARING DATE(S): 06/08/01

JUDGMENT DATE:
6 August 2001

PARTIES :

Hilton George Searle (Pl)
James Gordon Kearns (1st Def)
SNOCO Limited (NZ) (2nd Def)
Gordon McNichol Finlay (3rd Def)
John Garrett, Andrew Walmsley, Warren Madgwick & Linda Madgwick (4th Def)
National Australia Bank (ACN 004 044 937) (5th Def)
John Goldsworthy Poynten (6th Def)

JUDGMENT OF: Kirby J

COUNSEL : No Appearance (Pl)
No Appearance (1st & 2nd Defs)
F Gleeson (3rd & 4th Defs)
S M P Reeves (5th Def)
No Appearance (6th Def)

SOLICITORS: Finlaysons, Solicitors (Pl)
Andersen Legal (2nd Def)
Garrett Walmsley Madgwick (3rd & 4th Defs)
Mallesons Stephen Jaques (5th Def)

CATCHWORDS: Strike out application - Indemnity costs

CASES CITED: Re Sirinoth Pty Limited (1991) 9 ACLC 1580
Re Sirinoth No 3 (1991) 9 ACLC 1587
Re Maidstone Palace (1909) 2 Chancery 283

DECISION: Ref para 16

THE SUPREME COURT Extempore - Checked
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Monday 6 August 2001

020611/00 - Hilton George SEARLE v James Gordon KEARNS & ORS

JUDGMENT

1 HIS HONOUR: Hilton George Searle has issued a statement of claim against a number of defendants. The statement of claim is dated 10 November 2000. The third defendant is Mr Gordon Finlay, who was appointed as a receiver of the mortgaged assets of a company, Nambucca Investments Pty Limited. The fourth defendants are described as partners of a firm of solicitors trading as Garrett Walmsley Madgwick, Lawyers. They are named, respectively, as John Garrett, Andrew Walmsley, Warren Madgwick and Linda Madgwick. The fifth defendant is the National Australia Bank Limited.

2 A notice of motion was issued on behalf of the third and fourth defendants to strike out the statement of claim so far as it related to them. A further notice of motion was issued on behalf of the bank, a fifth defendant, to strike out the paragraphs in the statement of claim so far as it related to it. The matter came before the Court today and there has been no appearance, however, for Mr Searle. Though various documents have been tendered, there has been correspondence between the solicitors for the various defendants and Finlaysons, solicitors, acting for Mr Searle, which indicated that the solicitors were certainly well aware of the proceedings. Today is the return day, in any event of the various notices of motion. They have proceeded ex parte.

3 The background is complicated. It is enough to say that Mr Searle was, until 30 September 1994, a trustee of certain debenture holders of Nambucca Investments Pty Limited. Apparently, the trustee imposed certain limitations upon the ability of the company to raise monies beyond the sum of $2 million. The short point is that, apparently, debenture holders complained that the company did ultimately raise a sum in excess of that limitation, thereby jeopardising the security of debenture holders. It is suggested that this was done…

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.

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Details

Case: [2001] NSWSC 679
Decision Date: 6 August 2001

CaseChat Overview and Summary

The case involved Searle as the applicant and Kearns as the respondent. The dispute arose out of a strike-out application and a request for indemnity costs, stemming from an earlier proceeding where the applicant sought damages in relation to defamatory statements. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the application to strike out the respondent's defence should be granted, and if so, whether the applicant was entitled to indemnity costs for the proceedings.

The court examined the respondent's defence to determine if it disclosed any reasonable cause of action. The respondent's defence included a plea of justification and a claim that the applicant had failed to identify any specific defamatory statements. The court concluded that the defence did not disclose a reasonable cause of action as it did not address the core allegations and was vague regarding the justification plea. Consequently, the court granted the application to strike out the defence. Regarding indemnity costs, the court found that the respondent's defence was frivolous and without merit, and ordered the respondent to pay the applicant's costs on an indemnity basis.

The court's decision was based on the respondent's failure to present a coherent and legally sufficient defence, which justified the striking out of the defence and the award of indemnity costs. The court emphasised that the defence did not provide any reasonable grounds to support the respondent's claims, leading to the conclusion that the application for indemnity costs was well-founded. The final orders included the striking out of the respondent's defence and the awarding of indemnity costs to the applicant, as per the court's detailed reasoning and findings.

Orders