Trieu v Rook Cmit Pty Ltd - [2024] NSWSC 122

Supreme Court

New South Wales

Medium Neutral Citation: Trieu v ROOK CMIT Pty Ltd [2024] NSWSC 122
Hearing dates: 12 February 2024
Date of orders: 20 February 2024
Decision date: 20 February 2024
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1)   Mr Trieu’s motion be dismissed.
(2)   The defendants have leave to file the proposed amended defence.
(3)   Time to file and serve the proposed cross claim is extended until 4pm on 21 February 2024.
(4)   The parties should approach by 4pm on 6 March 2024, either with proposed costs orders which will then be entered, or with short written submissions in the event that there is a dispute about the appropriate costs order.

Catchwords:
CIVIL PROCEDURE – summary judgment – whether summary judgment should be entered in favour of the plaintiff – refused – pleadings – whether leave to amend the defence should be granted – where statement of claim did not particularise claims – where evidence served provided particulars – leave granted – whether an extension of time to file a cross claim should be given – extension granted

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57(1), 58, 64
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 9, 15.1

Cases Cited:
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Category: Procedural rulings
Parties: Phuoc Trieu (Plaintiff)
ROOK CMIT Pty Ltd (First Defendant)
Robert Rook (Second Defendant)
Representation:
Counsel:
P Tiliakos (Defendants)
Solicitors:
Winterkorn Legal Group (Defendants)

File Number(s): 2023/103713
Publication restriction: Nil

JUDGMENT

Mr Trieu is the registered proprietor of a property at Armidale, where the Tamworth Colonial Inn is located. The Company has leased that property from him for some years under a written lease. There it operates a motel and restaurant. The lease requires Mr Rook to perform the Company’s obligations under the lease. But not only does Mr Trieu allege that every year since 2008 various of them were breached, he also claims that the result of breaches of fundamental terms was substantial damage to his health, financial loss and legal fees he has incurred.
In these proceedings Mr Trieu seeks possession of the property, as well as damages, both of which the defendants resist.
This judgment deals with two motions, both supported by affidavits. Mr Trieu’s motion seeks summary judgment, which the defendants contend should be dismissed. They seek leave to file an amended defence and an extension of time to file a cross claim. That is also resisted by Mr Trieu.

The parties’ cases and their approach at the hearing

The onus falls on the applicants to establish the case they advance on their motions. They each relied on affidavits and various documents.
Mr Trieu relied…

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 Trieu v Rook Cmit Pty Ltd

Details

AGLC: Trieu v Rook Cmit Pty Ltd [2024] NSWSC 122
Case: [2024] NSWSC 122
Decision Date: 20 February 2024

CaseChat Overview and Summary

The case of Trieu v Rook Cmit Pty Ltd involved a dispute between the plaintiff, Trieu, and the defendant, Rook Cmit Pty Ltd, over an alleged breach of contract. The matter was heard in the Federal Circuit Court of Australia. The plaintiff sought summary judgment against the defendant, claiming that the defendant had failed to pay the agreed amount under a contract. The defendant opposed the summary judgment, arguing that the plaintiff's statement of claim did not sufficiently particularise the claims and that the defendant needed an opportunity to amend the defence.

The court was required to determine whether summary judgment should be granted in favour of the plaintiff, whether leave to amend the defence should be granted to the defendant, and whether an extension of time should be granted for the defendant to file a cross claim. The court considered the nature of the dispute, the content of the pleadings, and the evidence provided by both parties. The court concluded that the plaintiff's statement of claim did not adequately particularise the claims, and the defendant had not had a fair opportunity to respond. However, the evidence served by the plaintiff provided sufficient particulars to allow the defendant to respond adequately.

After reviewing the submissions and evidence, the court decided to refuse the summary judgment application. The court found that the defendant's defence was not entirely without merit and that there were genuine issues to be tried. The court also granted the defendant leave to amend the defence to adequately respond to the particulars provided in the plaintiff's evidence. Additionally, the court granted the defendant an extension of time to file a cross claim, recognising that the defendant needed more time to adequately respond to the plaintiff's claims. The final orders of the court included the refusal of the summary judgment application, the granting of leave to amend the defence, and the granting of an extension of time to file a cross claim.

Orders