TRIGGER v MOLONEY [1999] NSWSC 679

New South Wales Supreme Court CITATION : TRIGGER v MOLONEY [1999] NSWSC 679 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 20166/1999 HEARING DATE(S) : 17 June 1999 JUDGMENT DATE : 7 July 1999

RODNEY WAYNE TRIGGER PARTIES : v MICHAEL JOHN MOLONEY JUDGMENT OF : Master Malpass

COUNSEL : PLAINTIFF: PATRICIA McDONALD DEFENDANT: MR J IRELAND QC SOLICITORS : PLAINTIFF: WHITELAW MCDONALD DEFENDANT: EDDY & MOLONEY CATCHWORDS : Summary dismissal; claim doomed to failure; no question of principle. Fair Trading Act 1987 42. ACTS CITED : Trade Practices Act 1974 s 52. Supreme Court Rules 1970 Pt. 13 r 5. CASES CITED : Webster v Lampard 177 CLR 598. DECISION : SEE PARAGRAPH 13.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 7 JULY 1999

20166/99 RODNEY WAYNE TRIGGER v MICHAEL JOHN MOLONEY JUDGMENT 1 In September 1995, the defendant was carrying on business as a finance broker. The plaintiff was the owner of a property at Weston (the property). The plaintiff approached the defendant to arrange a loan on the security of the property. The plaintiff attended at the office of the defendant and discussion took place between them. A loan was arranged in the sum of $10,000.00. A solicitor (Diana Karageorge) acted for the plaintiff in the mortgage transaction. The transaction was completed and moneys were advanced to the plaintiff. 2 The purpose of the loan had been to enable the plaintiff to go into a bush rock business with Peter O'Shea. The plaintiff has said that he signed relevant documentation when suffering from the delusion that he was going to make a lot of money out of the business. Following the making of the advance, moneys were handed over to Peter O'Shea. It appears that Peter O'Shea may have gambled away the moneys. He then committed suicide. As a consequence, the plaintiff did not obtain any benefit from the business dealing with Peter O'Shea. 3 The mortgage was for a period of one year and had a fixed rate of interest. The plaintiff paid interest under the mortgage and at the end of the year it was renewed for a further period of one year. This was done at the written request of the plaintiff. Interest was paid pursuant to the renewed mortgage. However, default took place in the payment of the principal at the end of the term. It appears that the plaintiff had received some legal advice which led him to the view that he should challenge the mortgage itself. 4 Thereafter, the mortgagee brought proceedings founded upon default under the mortgage and claiming an order for possession. These proceedings remain on foot and are being defended. A Cross-claim has been brought against Diana Karageorge. It appears that the present proceedings could have been brought by way of Cross-claim in the possession proceedings, however because of a perceived limitation problem separate proceedings were in fact instituted. The Court has been informed that arrangements have been made for both proceedings to be heard together (subject to the application which is now before the Court). 5 The Statement of Claim was filed on 24 September 1998. It claims damages for inter alia depression, anxiety and economic loss. The claim is founded on alleged misleading or deceptive conduct within the meaning of both s 52 of the Trade Practices Act 1974 and s 42 of the Fair Trading Act 1987. It is alleged that four false representations were made by the defendant. The alleged representations are as follows:- "(a) The defendant held himself out as a solicitor acting for the plaintiff in relation to the loan transaction. (b) The defendant stated that the plaintiff was seeking a loan of $10,000. (c) The defendant stated that the plaintiff owned a car to the value of $7,500. (d) The defendant stated that the plaintiff was earning $500 per week as a musician."