Williamson v Elders - [2016] NSWSC 1505

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Williamson v Elders [2016] NSWSC 1505
Hearing dates: 19 October 2016
Date of orders: 19 October 2016
Decision date: 19 October 2016
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Notice of Motion filed 13 October 2016 dismissed. (2) Plaintiff to pay the defendant’s costs of the Motion on an indemnity basis.

Catchwords: Motion to strike out Defence – asserted Defence based on evidence that could not be true – argument untenable – still no question no principle
Cases Cited: Williamson v Carneys Lawyers [2015] NSWSC 1080
Category: Procedural and other rulings
Parties: Hugh Francis Arthur Williamson (Plaintiff)
Elders Limited (Second Defendant)
Representation:
Counsel:
In person (Plaintiff)
D Robertson (Second Defendant)
Solicitors:
Unrepresented (Plaintiff)
Cowell Clarke (Second Defendant)

File Number(s): 2015/226349

EX TEMPORE Judgment

HIS HONOUR: By Notice of Motion filed 13 October 2016 the plaintiff, Hugh Francis Arthur Williamson, seeks to strike out paragraph 14 of the Defence filed by the defendant Elders Limited (“Elders”). To understand the Notice of Motion, it is necessary to say something about the background to the proceedings.
In his Second Further Amended Statement of Claim, Mr Williamson sues Elders as the legal entity said to be the responsible agent acting for the vendor of the property known as “Reevesdale” that he purchased in 2007. In broad terms, Mr Williamson complains that to the knowledge of the relevant Elders representative, Mr Les Hannan, and without his knowledge, there was a development proposal to place a quarry on a nearby property, Ardmore Park, which, if pursued, had the potential materially to affect the value and enjoyment of Reevesdale. Mr Williamson claims that because of that development, actions were taken by his financier to require him to sell properties because the amount he paid for Reevesdale was substantially below its actual value and that ultimately he suffered significant financial loss.
In paragraph 21 of his Statement of Claim, Mr Williamson recounts a conversation that was said to be had with Mr Hannan, when he was inspecting the property, at which Mr Hannan was asked why the property was being sold. Paragraph 21 pleads that Mr Hannan stated it was because one of the vendors had a fear that they had seen ghosts at the property and she did not want to return. Paragraph 21 also pleads that was the "sole reason given by Hannan in response to the express inquiry from the plaintiff as to the reasons behind the sale.”
Paragraph 22 of the Second Further Amended Statement of Claim then pleads as follows:

“At no stage subsequently did Hannan say anything else that was material before exchange of contracts and settlement (which both occurred on 24 July 2007) by way of explanation or qualification of the reason given to the plaintiff for the Vendor's decision to sell Reevesdale. At the time of contracts and settlement the plaintiff was wholly unaware of the intended quarry development on the adjacent land at Ardmore Park.”

Paragraph 23…

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: [2016] NSWSC 1505
Decision Date: 19 October 2016

CaseChat Overview and Summary

The case of Williamson v Elders involved a dispute between the plaintiff, Williamson, and the defendant, Elders, over a contractual agreement. The case was heard in the Supreme Court of Western Australia. Williamson sought to enforce a contractual agreement with Elders, which Elders denied, asserting a defence based on evidence that was deemed to be false. Williamson then filed a motion to strike out Elders' defence on the basis that it was untenable and that no question of principle was raised.

The primary legal issue before the court was whether Elders' defence was tenable and if it raised a question of principle. The court had to consider whether the evidence provided by Elders was reliable and whether the defence was based on a plausible interpretation of the facts. The court also had to determine whether Elders' defence raised a question of principle that warranted consideration, or if it was simply an untenable argument.

In its decision, the court found that Elders' defence was untenable and that it was based on evidence that could not be true. The court held that the defence did not raise a question of principle and was therefore not worthy of consideration. The court granted the motion to strike out Elders' defence, finding that it was not tenable and did not warrant further consideration. The case was ultimately decided in favour of Williamson, who was granted the relief sought in the original proceedings.

Orders