Smith v Skinner

District Court

New South Wales

Medium Neutral Citation:

Smith v Skinner [2018] NSWDC 197

Hearing dates:

13 July 2018

Date of orders:

19 July 2018

Decision date:

19 July 2018

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Apart from the orders made on 13 July 2018, the plaintiff’s Motion is dismissed.
(2)   Order that the costs of the Motion be costs in the cause.

Catchwords:

PROCEDURE – application for summary judgment – evidence of facts on which claim is based – evidence of belief that there is no defence – whether the solicitor for the plaintiff is a “responsible person” within the meaning of the UCPR rule 13.1(1)(b) who can give evidence of such belief

 

PROCEDURE – summary judgment – whether there is a real question of law to be tried

 

GUARANTEE – whether wide enough to prevent guarantor from raising set-off or counterclaim which would have been available to the principal debtor to extinguish the guaranteed debt

  GUARANTEE – construction of guarantee – whether meaning certain – apparent width of possible application – need to determine facts relevant to commercial circumstances which guarantee addresses and objects it is intended to secure – not appropriate to determine construction of guarantee on summary judgment application

Legislation Cited:

Uniform Civil Procedural Rules 2005 (NSW)

Cases Cited:

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd 162 CLR 549
Australian Broadcasting Commission v Australasian Performing Rights Association Limited (1973) 129 CLR 99 at 109
BOC Group plc v Centeon LLC [1999] 1 All ER (Comm) 970
Bofinger v Kingsway Group Ltd [2009] HCA 44
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Doherty v Murphy [1996] 2 VR 553
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
Langford Concrete Pty Ltd v Finlay [1978] 1 NSWLR 14
Liberty Mutual Insurance Co (UK) Ltd v HSBC Bank plc [2001] Lloyd’s Rep Bank 224
McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579
Webster v Lampard (1993) 177 CLR 598

Texts Cited:

New South Wales Civil Procedure Handbook 2018, Lawbook Co
O’Donovan and Phillips, Modern Contract of Guarantee, Westlaw AU
Ritchie’s Uniform Civil Procedure (NSW)

Category:

Procedural and other rulings

Parties:

Laurence James Smith (plaintiff)
Kelvin Skinner (defendant)

Representation:

Counsel:
R Tregenza (plaintiff)
M Wells (defendant)

  Solicitors:
Paul A Brown & Co (plaintiff)
Shaddicks (defendant)

File Number(s):

2017/206944

Judgment

Introduction

1. The plaintiff seeks summary judgment pursuant to r 13.1 of the Uniform Civil Procedural Rules 2005 (NSW) against the defendant for $128,991.51, together with interest of $65,078.71 and costs.

2. Rule 13.1(1) provides:

“If, on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief:

(a)    there is evidence of the facts on which the claim or part of the claim is based, and

(b)   there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or…