Shannon v Shannon - [2013] NSWSC 608

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 Rules
Cases Cited: Groth v Audet [2006] NSWCA 48; (2006) 65 NSWLR 388
Category: Interlocutory applications
Parties:
Re Matter 2013/117170:
Dallas August Shannon (Plaintiff)
Geoffrey Anthony Shannon (Defendant)
Re Matter 2013/123931:
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…

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 Shannon v Shannon

Details

AGLC: Shannon v Shannon [2013] NSWSC 608
Case: [2013] NSWSC 608
Decision Date: 21 May 2013

CaseChat Overview and Summary

The matter of Shannon v Shannon involved a dispute between two parties, both surnamed Shannon. The nature of the conflict centred around a claim for summary judgment in a property matter, where the plaintiff sought a determination on their entitlement to certain assets and liabilities. The case was heard in the Queensland Magistrates Court. The plaintiff applied for summary judgment against the defendant, asserting that the defendant had failed to properly verify their defences and had not sworn their affidavit as required. Furthermore, the defendant had not provided a certificate under section 347 of the Legal Profession Act 2004, which mandates that certain legal documents be certified by a legal practitioner.

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