Supreme Court
New South Wales
Medium Neutral Citation: Shannon v Shannon & D & W Shannon Pty Ltd v Shannon [2013] NSWSC 608 Hearing dates: 21 May 2013 Decision date: 21 May 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. In the matter of Dallas August Shannon v Geoffrey Anthony Shannon I enter a judgment for $12,885,383 being principal and interest to date.
2. I order the Defendant to pay the Plaintiff's costs of the Motion and the proceedings.
3. In the matter of D & W Shannon Pty Limited v Geoffrey Anthony Shannon, I enter judgment for the Plaintiff for the sum of $8,916,052.74 being principal and interest to date.
4. I order the Defendant to pay the Plaintiff's costs of the proceedings.
Catchwords: PROCEDURE - application for summary judgment - defences not properly verified - affidavit not sworn by defendant - defendant in default - defences not properly certified under s 347 Legal Profession Act 2004 - effect of lack of proper certificate. Legislation Cited: Legal Profession Act 1987
Legal Profession Act 2004
Uniform Civil Procedure RulesCases Cited: Groth v Audet [2006] NSWCA 48; (2006) 65 NSWLR 388 Category: Interlocutory applications Parties: Re Matter 2013/117170:
Re Matter 2013/123931:
Dallas August Shannon (Plaintiff)
Geoffrey Anthony Shannon (Defendant)
D & W Shannon Pty Ltd (Plaintiff)
Geoffrey Anthony Shannon (Defendant)Representation: Counsel:
G Dilworth (Plaintiff)
K Tang (Solicitor for the Defendants)
Solicitors:
Mark M Morris, Solicitor (Plaintiff)
Blueprint Law (Defendants)
File Number(s): 2013/117170 & 2013/123931
Judgment
These are two related proceedings where judgment is sought by reason of the Defence filed in each.
In the proceedings of Dallas August Shannon against Geoffrey Shannon the proceedings commenced by the filing of a Statement of Claim on 16 April 2013 claiming a debt as a result of moneys loaned to the Defendant in the sum of a little under $13 million, together with interest.
In the second proceedings D & W Shannon Pty Limited commenced similar proceedings on 22 April 2013 against Geoffrey Shannon seeking a debt arising from moneys lent to him in the amount of about $8.5 million.
In the proceedings commenced by Dallas Shannon a Defence was filed on 29 April 2013 which admitted the loans and the failure to repay but pleaded as a substantive defence that the loans were never repayable because all of the advances reverted to gifts. There are no particulars in relation to this so-called reversion.
The defence in the proceedings commenced by D & W Shannon Pty Limited admitted the loan and the failure to repay, but pleaded as a substantive defence that the default rate of interest of 20 per cent per annum was a penalty and is therefore illegal.
In both cases, the Defence contained a certificate in these terms:
I certify under s 347 of the Legal Profession Act 2004 that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law, that the defence to the claim for…
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- AGLC
- Shannon v Shannon [2013] NSWSC 608
- Case
- [2013] NSWSC 608
- Decision Date
CaseChat Overview and Summary
The court needed to address whether the lack of a proper certificate and the absence of a sworn affidavit by the defendant rendered their defences invalid. The plaintiff argued that the failure to comply with these procedural requirements meant that the defendant's defences were not properly before the court, thereby justifying summary judgment. The court had to determine if the absence of a certificate and the un-sworn affidavit constituted a fatal procedural error that precluded the defendant's ability to properly defend the claim.
The court held that the defendant's failure to properly certify their defences and to swear their affidavit as required under the Legal Profession Act 2004 constituted a significant procedural error. Since the defendant was in default and their defences were not properly verified, the court ruled that these defects meant the defendant could not effectively defend the claim. Consequently, the court granted the plaintiff's application for summary judgment, finding that the procedural errors rendered the defendant's defences invalid. The court did not need to address the merits of the claim as the procedural issues were determinative.
The court ordered that the plaintiff's application for summary judgment be granted, and that the defendant's defences be struck out for failure to comply with the statutory requirements. The plaintiff was awarded the relief sought in their application, and the case was concluded in their favour.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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