McMurtrie v Calver (No 2) [2008] NSWSC 375

New South Wales Supreme Court

CITATION : McMurtrie v Calver (No 2) [2008] NSWSC 375

HEARING DATE(S) : 18 April 2008

JUDGMENT DATE : 28 April 2008

JUDGMENT OF : Harrison J

DECISION : 1. The proceedings against the second defendant are dismissed. 2. The plaintiffs are to pay the second defendant's costs of the proceedings, including reserved costs.

CATCHWORDS : PRACTICE AND PROCEDURE – strike out application – UCPR 13.44 and 14.28 – proceedings against second defendant dismissed

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

CATEGORY : Procedural and other rulings

CASES CITED : McMurtrie v Calver [2007] NSWSC 996 Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263

TEXTS CITED : Bowstead & Reynolds on Agency, 18th ed (2006) Sweet & Maxwell

Mark McMurtrie (First plaintiff) PARTIES : Rosemarie Elizabeth McMurtrie (Second plaintiff) Erling Harold Calver (First defendant) Wendy Ann Jones (Second defendant)

FILE NUMBER(S) : SC 20031 of 2007

COUNSEL : S Boote (Plaintiffs) J A Trebeck (Second defendant)

A Ace Solicitors (Plaintiffs) SOLICITORS : Parker Kissane Solicitors (First defendant) Sanderson Partners Lawyers (Second defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HARRISON J

28 April 2008

20031 of 2007 Mark McMurtrie and Rosemarie Elizabeth McMurtrie v Erling Harold Calver and Wendy Ann Jones

JUDGMENT

1 On 10 September 2007 Harrison AsJ struck out the plaintiffs' statement of claim in accordance with orders sought by the second defendant in her notice of motion filed 26 June 2007: see McMurtrie v Calver [2007] NSWSC 996. Her Honour granted leave to the plaintiffs to file and serve an amended statement of claim within 28 days and reserved costs. The second defendant had sought orders that the proceedings against her be dismissed pursuant to UCPR 13.4(1)(b) on the ground that no reasonable cause of action was disclosed or an order that the statement of claim against her be struck out pursuant to UCPR 14.28(1) (a) and (b) on the ground that it disclosed no reasonable cause of action or alternatively had a tendency to cause prejudice, embarrassment or delay, or both. 2 Under the heading "Summary judgment and strike out claim", her Honour set out in detail the relevant factual background and the pertinent authorities in relation to the application of these rules. I respectfully adopt her Honour's analysis for the purposes of these reasons and do not repeat the matters that she described. 3 On 11 October 2007 the plaintiffs filed an amended statement of claim. On 8 November 2007 the second defendant filed another notice of motion in which she sought the same relief with respect to the amended statement of claim as she had sought in her original notice of motion. 4 That matter came before me on Friday 18 April 2008. Mr Trebeck of counsel appeared to the second defendant. Mr Boote of counsel appeared for the plaintiffs. I reserved my judgment on that day. 5 The plaintiffs' amended statement of claim is a curious document. It has clearly not been prepared by, or with the benefit of, counsel or professional legal advice of any kind. I am informed by Mr Boote, if it was not otherwise apparent, that the document was prepared by the first plaintiff. The document is 37 pages long, confused and confusing, and is replete with inappropriate references to legal concepts and technical legal terms. 6 Briefly the plaintiffs allege that they entered into a contract with the first defendant on 7 February 2005 to lease, and to purchase, land owned by him. The land that is said to be the subject of the contract was at the date of the contract in fact owned by the first defendant and the second defendant as tenants in common. They were formerly married to each other. 7 The plaintiffs obtained default judgment against the first defendant in 2007, and an application by the first defendant to set aside that default judgment was also heard and determined, unfavourably to the first defendant, by Harrison AsJ in the decision to which I have earlier referred. A second application by the first defendant for identical relief came before me today and was dismissed with costs. 8 The amended statement of claim alleges against the second defendant that she "was informed personally by the plaintiffs of the existence and terms of the contract entered [into] by the first defendant and the plaintiffs on 1 and 2 August 2005 and the second defendant said she agreed with the terms": par 29. Particulars of that allegation reveal that in fact the assertion is that the second defendant said to the plaintiffs that she "was happy for the sale of the two acres to go ahead if it would help retire the mortgage held by the defendants and allow the second defendant to settle her matrimonial dispute with the first defendant". 9 As the second defendant was clearly not a party to the contract between the plaintiffs and the first defendant upon which the plaintiffs sue, the plaintiffs have sought in these circumstances to make her liable upon one or more of the following bases: - 9.1 That she ratified the contract.