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Skelton v Foggo (No 2)

Skelton v Foggo (No 2)

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Case Copied 27 September 2022 43 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Skelton v Foggo (No 2) [2022] NSWSC 1289
Hearing dates: 31 August 2022
Date of orders: 27 September 2022
Decision date: 27 September 2022
Jurisdiction: Common Law
Before: Dhanji J
Decision:
(1) Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff’s statement of claim filed on 17 March 2021 is struck out as against the third defendant.
(2)   The notice of motion filed by the third defendant on 22 March 2022 is otherwise dismissed.
(3)   If the plaintiff seeks to amend the statement of claim, the plaintiff is to file and serve a notice of motion on or before 8 November 2022 accompanied by the proposed version of his pleading and any affidavit that may be appropriate in support of his notice of motion.
(4)   Leave is granted for any such motion to be returnable before the Court on 22 November 2022.
(5)   The plaintiff is to pay the third defendant’s costs on the motion on the ordinary basis.
(6)   The proceedings are stood over for further directions before the Common Law Registrar at 9am on 22 November 2022.

Catchwords:
CIVIL PROCEDURE – summary dismissal – dismissal of proceedings – no reasonable cause of action – limitation period – whether claims statute barred – breach of fiduciary duty – not the clearest of cases – application dismissed
CIVIL PROCEDURE – pleadings – striking out – no reasonable cause of action – tendency to cause prejudice, embarrassment or delay – lack of clarity – statement of claim struck out – leave to amend granted
CIVIL PROCEDURE – application for stay of proceedings – abuse of process – discretion not exercised

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Limitation Act 1969 (NSW), ss 11(3), 14, 52
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Cases Cited:
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1; [1999] NSWCA 408
Binetter v Binetter [2022] NSWCA 169
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Cassell v Skelton (1990) 11 MVR 133
Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36
Clarke v State of New South Wales (No.4) [2015] NSWSC 1054
Combe v Bank of Queensland [2011] NSWSC 1347
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Eastmark Holdings Pty Ltd v Kabraji (2012) 91 ACSR 32; [2012] NSWSC 802
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Gerard Cassegrain & Co Pty Ltd v Cassegrain [2011] NSWSC 1156
Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64
Kingsley Corporation Pty Ltd v Australian and New Zealand Banking Group (No 2)

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: [2022] NSWSC 1289
Decision Date: 27 September 2022

CaseChat Overview and Summary

Skelton and Foggo were the parties involved in a legal dispute that reached the Federal Court of Australia. The case centred around allegations of breach of fiduciary duty and whether the claims were statute-barred due to the passage of time. The plaintiff sought damages against the defendant, asserting that the defendant had breached fiduciary duties owed to him. The defendant, in turn, argued that the plaintiff's claims were time-barred and lacked merit.

The primary legal issues before the court were whether the plaintiff's claims were statute-barred and if they constituted a cause of action that had no reasonable prospects of success. The court was required to assess whether the claims were clearly unfounded or if they had any basis in law or fact. Additionally, the court had to determine whether the statement of claim was so unclear that it caused prejudice, embarrassment, or delay to the defendant, warranting its striking out.

The court found that the claims were not the clearest of cases, but there was a basis for the plaintiff's allegations that could potentially lead to a successful outcome. However, the court also found that the statement of claim was lacking in clarity, which caused prejudice to the defendant. Consequently, the court struck out the statement of claim but granted leave to the plaintiff to amend it, providing an opportunity for the plaintiff to clarify the allegations. The court also declined to exercise its discretion to stay the proceedings, finding no basis for an abuse of process.

The court ordered the statement of claim be struck out, with leave granted to the plaintiff to amend it. The application for a stay of proceedings was dismissed.

Orders