McLeod v Munro & Anor (No 2) [2005] NSWCA 378

New South Wales Court of Appeal

CITATION: McLeod v Munro & Anor (No 2) [2005] NSWCA 378

HEARING DATE(S): 27 October 2005

JUDGMENT DATE: 3 November 2005

JUDGMENT OF: Handley JA at 1; Campbell AJA at 25

DECISION: 1 Time for the filing of the summons for leave to appeal is extended to 20 January 2005.; 2 Summons dismissed.; 3 Claimant to pay the opponents costs of the summons.

CATCHWORDS: PRACTICE – District Court – pleading – summary judgment – no question of principle - ND

District Court Act 1973 LEGISLATION CITED: District Court Rules 1973

Foran v Wight (1989) 168 CLR 385 CASES CITED: McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457

David McLeod (Claimant) Kevin Munro (First Opponent) PARTIES: Yaltara Nominees Pty Ltd (Second Opponent)

FILE NUMBER(S): CA 40051 of 2005

A Paterson (Claimant) COUNSEL: J Kelly SC (Opponents)

Michael Brereton & Co (Claimant) SOLICITORS: Bamford Associates (Opponents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5182 of 2003

LOWER COURT JUDICIAL OFFICER: Rolfe DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40051 of 2005

HANDLEY JA M.W. CAMPBELL AJA

3 NOVEMBER 2005 DAVID McLEOD v KEVIN MUNRO & ANOR (No 2) CATCHWORDS

PRACTICE – District Court – pleading – summary judgment – no question of principle FACTS

The opponent sued the claimant in the District Court for debt. The Judge acting under DCR Pt 9 r 17 struck out the claimant's defence, refused leave to amend and entered judgment in favour of the opponent. The claimant argued that the Judge was not entitled to strike out his defence, should have given him leave to amend, and was not entitled to enter judgment for the opponent. He also argued that the promise sued on was joint and the other promisors were not joined, and the benefit of the promise was held jointly by the opponent and others and the other promisees had not been joined. HELD: (1) The claimant's continued delays in filing his evidence in breach of directions that he do so combined with the failure of his defence, after two amendments, to disclose a triable issue entitled the Judge to find that the defence was vexatious and an abuse of process so that DCR Pt 9 r 17(1)(a) and (b) were satisfied; (2) Non-joinder of parties did not defeat the judgment; (3) DCR Pt 9 r 12(1) which prohibits departure in pleading does not prevent amendments that are inconsistent with the pleading being amended. ORDERS