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Short v Crawley

Short v Crawley

Case [2005] NSWSC 928 15 September 2005

Jurisdiction

Discovery & Disclosure

Breach of Contract

Unconscionable Conduct

Civil Litigation & Procedure

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CITATION:
Short v Crawley [2005] NSWSC 928
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15/08/05

JUDGMENT DATE :

15 September 2005

JUDGMENT OF:
White J

DECISION:
See para 55 of judgment.

CATCHWORDS:
PRACTICE AND PROCEDURE - Application to reformulate pleadings and add new respondents - Whether new pleadings are reasonably arguable, inconsistent with previous verified pleadings or cause irremediable prejudice due to the death of the primary respondent - Allegation of unconscionable retention of property arising out of breach of contract - Held that new claims are not manifestly hopeless - Leave to amend granted.

CASES CITED:
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Commonwealth v Verwayen (1990) 170 CLR 394
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Muchinski v Dodds (1985) 160 CLR 583
Baumgartner v Baumgartner (1987) 164 CLR 137
West v Mead [2003] NSWSC 161
Town & Country Property Management Services Pty Ltd v Kaltoum [2002] NSWSC 166
Biscayne Partners Pty Ltd v Valance Corp Pty Ltd [2003] NSWSC 874
Hospital Products Ltd v US Surgical Corp (1984) 156 CLR 41
United States Surgical Corp v Hospital Products International Pty Ltd [1983] 2 NSWLR 157
Yeshiva Properties No. 1 Pty Ltd v Marshall [2005] NSWCA 23
Ford Excavations Pty Ltd v Do Carmo [1981] 2 NSWLR 253
Vane v Vane (1873) 8 Ch App 383
In re Montagu's Settlement Trusts [1987] Ch 264 at 283
Agip (Africa) Ltd v Jackson [1990] Ch 265
Attorney-General v Blake [2001] 1 AC 268
Wickstead v Browne (1992) 30 NSWLR 1
Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] 2 AC 378
Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373
Gertsch v Atsas (1999) 10 BPR 18,431
New Cap Reinsurance Corporation Ltd v General Cologne Re Australia Ltd [2004] NSWSC 781
Twinsectra Ltd v Yardley [2002] AC 164
Cadwallader v Bajco Pty Ltd [2002] NSWCA 328

PARTIES:
Roslyn Short as executrix of the estate of the late Warwick Gordon Short & 1 Or
v
Christopher Crawley & 9 Ors

FILE NUMBER(S):
SC 2824/98

COUNSEL:
Cross-claimants: A J L Bannon SC, D B Studdy
Cross-defendants: I M Jackman SC, T M Thawley

SOLICITORS:
Cross-claimants: Blake Dawson Waldron
Cross-defendants: Kemp Strang

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 15 September 2005

2824/98 Roslyn Short as executrix of the estate of the Late Warwick Gordon Short & 1 Or v Christopher Crawley & 9 Ors – No. 25

JUDGMENT

1 HIS HONOUR: The first to sixth defendants seek leave to file a third further amended cross-claim. The background to the application can be seen from the judgment of Hodgson J of 7 July 2003 and my judgment of 10 March 2005. In the new proposed pleadings, the cross-claimants seek to join Mrs Short as a cross-defendant in her personal capacity and to join Quadrafox Pty Ltd, Fraser…

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 Short v Crawley

Details

AGLC: Short v Crawley [2005] NSWSC 928
Case: [2005] NSWSC 928
Decision Date: 15 September 2005

CaseChat Overview and Summary

Short v Crawley is a case where the applicant sought to amend pleadings to add new claims and respondents following the death of the primary respondent. The original action involved allegations of unconscionable retention of property arising from a breach of contract. The Federal Circuit and Family Court of Australia was tasked with determining whether the applicant's proposed new pleadings were reasonably arguable, consistent with previously verified pleadings, and whether the amendments would cause irremediable prejudice due to the death of the primary respondent.

The court needed to decide if the new claims were not manifestly hopeless and whether the amendments were permissible under the relevant rules of court. The court examined the nature of the new claims, whether they arose out of the same transaction or series of transactions, and whether they were consistent with the original cause of action. The court also considered whether the death of the primary respondent would result in any prejudice to the respondents, particularly in terms of the ability to defend the claims.

The court found that the new claims were not manifestly hopeless and were reasonably arguable. It concluded that the amendments did not introduce new causes of action but rather expanded on the existing ones. The court held that the new pleadings were not inconsistent with the previous verified pleadings and that the death of the primary respondent did not cause irremediable prejudice. The court granted leave to amend the pleadings, allowing the applicant to proceed with the new claims against the additional respondents.

The final orders of the court included granting leave to the applicant to amend the pleadings to include the new claims and respondents, with specific directions regarding the timing and content of the amended pleadings. The court also ordered that the respondents file their defences within a specified period.

Orders