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Singh v Carroll

Singh v Carroll

Case [2023] NSWSC 245 23 March 2023

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Singh v Carroll & Ors [2023] NSWSC 245
Hearing dates: 26 October 2022
Date of orders: 23 March 2023
Decision date: 23 March 2023
Jurisdiction: Common Law
Before: McNaughton J
Decision:
(1) The Statement of Claim so far as it concerns the Property Claims is summarily dismissed pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW).
(2) The balance of the Statement of Claim is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
(3) Gurjit Singh is to pay the costs of the Notices of Motion as agreed or assessed.

Catchwords:
CIVIL – notice of motion to summarily dismiss and/or strike out statement of claim – respondent to motion is an undischarged bankrupt – whether respondent has lack of standing due to bankruptcy – whether causes of action correctly put – property claims summarily dismissed as incompetent and an abuse of process – no reasonable cause of action disclosed for emotional distress claim and misfeasance in public office claim – entire statement of claim summarily dismissed or struck out

Legislation Cited:
Bankruptcy Act1966 (Cth) ss 5, 58, 116, 126
Civil Procedure Act 2005 (NSW) s 56
Residential Tenancies Act 2010 (NSW) s 84
Uniform Civil Procedure Rules 2005 (NSW) rr 12.11, 13.4, 14.28

Cases Cited:
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Agius v New South Wales [2001] NSWCA 371
Batistatos v Roads and Traffic Authorityof New South Wales (2006) 226 CLR 256; [2006] HCA 27
Clavel v Savage (No 2) [2014] NSWSC 463
Cox v Journeaux(No 2) (1935) 52 CLR 713; [1935] HCA 48
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Elali(a bankrupt) v Mahrs [2013] NSWSC 1883
Faulkner v Bluett (1981) 52 FLR 115
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236
Habib v Commonwealth of Australia (No 2) (2009) 175 FCR 350; [2009] FCA 228
Kostov v Amelie Housing (NCAT Appeal) [2019] NSWSC 16
Massalski v The Owners SP 90255 & Ors. [2023] NSWSC 23
Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59
Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep)
Samootin v Shea [2010] NSWCA 371
Shaw v State of New South Wales [2012] NSWCA 102
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Singh v Lekhwar [2022] NSWCATAP 158
Thistlethwayte v Gender Estates Pty Ltd (1976) 8 ALR 700
Ugur v AttorneyGeneral for New South Wales [2019] NSWCA 86
Watkins v Secretary of State for the Home Department [2006] 2 AC 395; [2006] UKHL 17

Category: Principal judgment
Parties: Dominique Anne Carroll (First Applicant in First Notice of Motion/First Defendant in Statement of Claim)
Daniel Joseph McKinnon (Second Applicant…

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 Singh v Carroll

Details

AGLC: Singh v Carroll [2023] NSWSC 245
Case: [2023] NSWSC 245
Decision Date: 23 March 2023

CaseChat Overview and Summary

Singh v Carroll is a civil case involving the plaintiff, Singh, and the defendant, Carroll. The dispute revolves around allegations of property claims, emotional distress, and misfeasance in public office. The case was heard in the Federal Circuit Court of Australia. Singh filed a statement of claim against Carroll, asserting multiple causes of action. The respondent moved to summarily dismiss and/or strike out the statement of claim on several grounds, including the lack of standing due to Carroll's status as an undischarged bankrupt and the improper formulation of the causes of action.

The court was required to determine whether Carroll's bankruptcy rendered him without standing to defend the action and whether the causes of action were correctly articulated. Additionally, the court needed to assess whether the property claims were competent and if there was a reasonable cause of action for the emotional distress and misfeasance in public office claims. The court found that Carroll's status as an undischarged bankrupt did not necessarily preclude him from defending the action, but the property claims were deemed incompetent and an abuse of process. The court also concluded that no reasonable cause of action was disclosed for the emotional distress and misfeasance in public office claims.

Consequently, the court dismissed the entire statement of claim or struck it out. The property claims were dismissed as incompetent and an abuse of process, and the emotional distress and misfeasance in public office claims were dismissed due to the absence of a reasonable cause of action. The court's decision effectively terminated Singh's claims against Carroll, leaving no viable causes of action.

Orders