Fawcett v Cannon & Ors [2007] NSWSC 1267

New South Wales Supreme Court

CITATION : Fawcett v Cannon & Ors [2007] NSWSC 1267 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 4 October 2007

JUDGMENT DATE : 8 November 2007

JURISDICTION : Supreme Court

JUDGMENT OF : Rothman J

(i) The motion seeking summary dismissal of the proceedings as against the sixth, seventh and eighth defendants be dismissed.

(ii) So much of the Statement of Claim that pleads an involvement by Mr Schofield, the eleventh defendant, in a contravention of Part V of the Trade Practices Act be struck out and the proceedings insofar as it relies upon the aforesaid cause of action be dismissed.

DECISION : (iii) Otherwise than the immediately preceding paragraph, the motion for the striking out of the Statement of Claim by the fifth, sixth, seventh, eighth and eleventh defendants be dismissed.

(iv) The sixth, seventh and eighth defendants pay 50% of the plaintiff's costs of both motions and the proceedings in relation thereto, as agreed or assessed. Such costs to be payable forthwith.

(v) The fifth, sixth, seventh, eighth and eleventh defendants pay a further 40% of the plaintiff's costs of both motions and the proceedings relating thereto, as agreed or assessed.

CATCHWORDS : PRACTICE AND PROCEDURE - summary dismissal - motion to strike out pleadings in whole or in part - curable defects

LEGISLATION CITED : Trade Practices Act 1974 (Cth)

Batistatos v RTA of NSW (2006) 226 CLR 256 Cox v Journeaux (1935) 52 CLR 713 CASES CITED : General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 Laws v GWS Machinery [2007] NSWSC 316 McPherson's Limited v Eaton (2005) 65 NSWLR 187 Shalhoub Holdings Pty Ltd & Ors v CBA [2006] NSWSC 607