Jackson v Symonds & Anor [2005] NSWSC 228

New South Wales Supreme Court

CITATION : Jackson v Symonds & Anor [2005] NSWSC 228

HEARING DATE(S) : 17 March 2005

JUDGMENT DATE : 22 March 2005

JUDGMENT OF : Simpson J

DECISION : statement of claim an abuse of process; struck out in part; leave to file an amended statement of claim

CATCHWORDS : application for summary disposal - application for leave to amend originating process - circumstances of revocation of Deed - identical claims in contract and in tort - limitation period

Family Law Act 1975 s 87 LEGISLATION CITED : Limitation Act 1969, s14 SCR Part 13 rule 5, Part 15 rule 26

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 CASES CITED : Wilson v Rigg [2002] NSWCA 246, unreported, 26 July 2002

Emma Ruth Jackson - Plaintiff PARTIES : Mark Phillip Symonds - 1st Defendant Ian Ross Pratt - 2nd Defendant

FILE NUMBER(S) : SC 20060/03

Mr Ian Harrison SC with Ms Dominique Hogan-Doran - Plaintiff COUNSEL : Mr Paul Brereton SC with Mr Scott Nixon - 1st Defendant Mr Michael Fordham - 2nd Defendant

Uther Webster and Evans - Plaintiff SOLICITORS : Hunt and Hunt Lawyers - 1st Defendant Minter Ellison Lawyers - 2nd Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Tuesday 22 March 2005

20060/03 Emma Ruth Jackson v Mark Phillip Symonds & Anor

JUDGMENT: (i) on application for summary disposal; (ii on application for leave to amend originating process 1 HER HONOUR: The principal proceedings were commenced by statement of claim filed on 10 March 2003. The most recent version of the plaintiff's claim is contained in a Further Amended Statement of Claim ("FASC"), filed on 15 July 2004. That is a document which extends to 62 substantive paragraphs, over 37 closely typed pages. In the FASC six defendants are named, of whom only the first and second need here be mentioned. The proceedings against the third to sixth defendants have been resolved. 2 It is unnecessary to refer extensively to the allegations made in the FASC. So far as material for present purposes, the plaintiff seeks to prove the following. 3 In 1996 the plaintiff was a litigant in proceedings under the Family Law Act 1975 ("the Act") brought in the Family Court of Australia ("FCA") involving a claim for the allocation or reallocation of property interests of herself and her former husband. She was advised and represented by the first defendant, Mark Phillip Symonds, a solicitor. She retained and took the advice of the second defendant, who was an accountant. On 3 September 1996 the plaintiff and her former husband resolved their disputes over property and entered into a maintenance agreement pursuant to s87(1) of the Act. The agreement was formulated into a Deed. Pursuant to s87(3) of the Act, the FCA on 3 September 1996 approved the agreement contained in the Deed. The agreement required the plaintiff's former husband to pay her a specified sum of money. By s87(4)(b) of the Act the effect of the approval was to terminate any rights the plaintiff then had to claim against her former husband in respect of his or their property interests – that is, the approval operated to finalise all property disputes between them. In entering into the Deed, and in seeking the FCA's approval of it, the plaintiff acted on the legal advice of the first defendant, and on the financial advice of the second defendant. 4 By s87(8) of the Act, approval of a maintenance agreement under s87(3) could be revoked only in very limited circumstances, set out in the subsection. They are: