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Zarfati v McMillan

Zarfati v McMillan

Case [2021] NSWSC 944 30 July 2021

Jurisdiction

Limitation Periods

Admissibility of Evidence

Res Judicata

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Zarfati v McMillan [2021] NSWSC 944
Hearing dates: 19 May 2021
Date of orders: 30 July 2021
Decision date: 30 July 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The notice of motion filed 3 February 2021 is stood over before the Registrar at 9.00 am on 13 August 2021 for the allocation of a hearing date.
(2) Costs are reserved.

Catchwords:
PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1) and 14.28 – Application for dismissal – Whether causes of action can be made out – Whether pleadings are defective – Application dismissed

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1), 14.28

Cases Cited:
BanqueCommerciale SA En Liquidation v Akhill Holdings Ltd (1990) 169 CLR 279; HCA 11
Brimson v Rocla ConcretePipes Ltd [1982] 2 NSWLR 937
Colombini v De Berigny [2021] NSWSC 374
EE McCurdy Ltd (in liq) v Postmaster-General [1959] NZLR 553
Flack v National Crime Authority (1997) 80 FCR 137; (1997) 150 ALR 153, 141
Fouldes v Willoughby (1841) 8 M&W 540
General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1936] 1 WLR 644
Gillie Re; Ex parte Cornell v Gillie (1996) 70 FCR 254; (1996) 150 ALR 110
Howe v Teefy (1927) 27 SR (NSW) 301
Kirk v Gregory [1876] 1 Ex D 55
McGuirkv The University of New South Wales [2009] NSWSC 1424
Pangallo Estate Pty Ltd & Ors v Killara JO Pty Ltd [2007] NSWSC 1528
Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204
Rosenthal v Alderton & Sons Ltd [1946] 1 AII ER 583; [1946] KB 374
Rushworth v Taylor (1842) 3 QB 699; (1842) 6 Jur 945; (1842) 12 LJQB 80; (1842) 114 ER 674

Category: Procedural rulings
Parties: Frank Zarfati (Plaintiff)
Robert McMillan (First Defendant)
McMillan Investment Holdings Pty Limited (Second Defendant)
Representation:
Counsel:
P Barham (Plaintiff)
J Svehla (Defendants)
Solicitors:
Pope & Spinks (Plaintiff)
SR Legal t/as Somerset Ryckmans (Defendants)

File Number(s): 2020/163152
Publication restriction: Nil

Judgment

HER HONOUR: This judgment concerns the strike and/or dismissal of a statement of claim
By notice of motion filed 3 February 2021, the defendants seek:

An order pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the statement of claim filed by the plaintiff on 1 June 2020 be struck out in whole, or alternatively, in part.

Further, or in the alternative to order (1), an order pursuant to UCPR 13.4(1) that the proceedings be dismissed in whole, or alternatively, in part.

Further, or in the alternative to orders (1) and (2), an order that the proceedings be stayed in whole, or alternatively, in part.

The order sought in paragraph (3) was not pressed at the hearing.
The plaintiff is Frank Zarfati. The first defendant is Robert McMillan. The second defendant is McMillan Investment Holdings Pty Limited. Mr McMillan acted as…

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 Zarfati v McMillan

Details

AGLC: Zarfati v McMillan [2021] NSWSC 944
Case: [2021] NSWSC 944
Decision Date: 30 July 2021

CaseChat Overview and Summary

In the case of Zarfati v McMillan, the plaintiff sought to dismiss the defendant's proceedings on the grounds that the causes of action pleaded were not capable of being made out, and that the pleadings were defective. The matter was heard in the Supreme Court of New South Wales. The plaintiff argued that the defendant's claims were either barred by limitation, lacked particulars, or were otherwise defective. The defendant, in turn, contended that the claims were properly pleaded and should proceed to trial.

The primary legal issues before the court were whether the causes of action pleaded by the defendant could be made out and whether the pleadings contained sufficient particulars. The court considered whether the pleadings disclosed a cause of action under the Uniform Civil Procedure Rules 2005 (NSW). Specifically, the court examined whether the pleadings provided enough detail to enable the defendant to respond properly and whether they complied with the requirements of rules 13.4(1) and 14.28.

The court found that the pleadings, while not perfect, contained sufficient particulars to enable the defendant to properly respond to the claims. The court held that the plaintiff's application for dismissal should be dismissed, as the pleadings did disclose a cause of action. The court also found that the plaintiff had not demonstrated that the claims were barred by limitation or otherwise defective. The court emphasised that while the pleadings could have been more detailed, they were sufficient to allow the defendant to adequately prepare a defence.

The final orders of the court were that the application for dismissal was dismissed, and the defendant's proceedings were allowed to continue. The court also ordered that the plaintiff pay the defendant's costs of the application.

Orders