Von Schulz v Hurstville City Council [2000] NSWSC 1035

New South Wales Supreme Court

CITATION : Von Schulz v Hurstville City Council [2000] NSWSC 1035 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13269/97 HEARING DATE(S) : 27 October 2000 JUDGMENT DATE : 8 November 2000

Karl Von Schulz (Plaintiff) PARTIES : Hurstville City Council (Defendant) JUDGMENT OF : Master Harrison

Mr K Von Schulz (Plaintiff in Person) COUNSEL : Mr G L Turner (Defendant) SOLICITORS : Corrs Chambers Westgarth (Defendant) CATCHWORDS : Summary judgment Supreme Court Rules - Part 13 r 5, Part 15 r 26 LEGISLATION CITED : Fair Trading Act 1987 - ss 41,42 & 68 Bullen & Leake and Jacobs Precedents of Pleadings 12th Ed at 341 Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62 CASES CITED : General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Webster & Anor v Lampard (1993) 177 CLR 598 H 1976 Nominees Pty Ltd v Galli Ltd & Quarries Ltd (1979) ALR 181 at 186-187 DECISION : See para 29

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 8 NOVEMBER 2000

13269/97 - KARL VON SCHULZ v HURSTVILLE CITY COUNCIL

JUDGMENT (Summary judgment)

1 MASTER: By notice of motion filed 2 August 2000 the defendant Hurstville City Council, seeks an order firstly, that the proceedings be stayed pursuant to Part 13 r 5 of the Supreme Court Rules (SCR), or alternatively that the further amended statement of claim be struck out; or secondly, that the plaintiff's claim for damages which occurred prior to 21 November 1991, be struck out insofar as the claim for those damages is made in paragraphs 3, 4, 5 and 12 pursuant to Part 15 r 26 (SCR); or thirdly, that the plaintiff's claim for damages which occurred prior to 21 November 1991, be struck out insofar as the claim for those damages is made in paragraphs 6, 7, 8, 9, 10, 11 and 12 or an order limiting the issues for trial. The defendant relied on the affidavit of Jean Paul Wallace sworn 1 August 2000. The plaintiff relied on his affidavit sworn 24 August 2000. 2 Regrettably, Mr Von Schulz forwarded a further affidavit of 2 November 2000 to my chambers after the proceedings had been concluded. I have read the contents of this affidavit and taken them into account but my decision has not altered. 3 The complaint by the plaintiff against the defendant arise out of road works which were carried out in the Hurstville area outside the plaintiff's shop. The plaintiff alleges that the defendant owed a duty of care to him in respect of carrying out those road works. It had a duty to act reasonably, and that it wrongfully breached that duty. This caused damage to his business which resulted in its closure. The plaintiff also alleges breaches of ss 41 and 42 of the Fair Trading Act 1987(FTA) because of the conduct of the defendant in making representations and he alleges fraud on the part of the defendant. 4 The brief facts (for the purposes of this application I have taken the plaintiff's case at its highest) are as follows.