Cairns v Freeman & ors [2008] NSWSC 792

New South Wales Supreme Court

CITATION : Cairns v Freeman & ors [2008] NSWSC 792

HEARING DATE(S) : 6 June 2008 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 6 June 2008

DECISION : Appeal allowed, orders of Associate Judge for summary dismissal set aside; part of pleading struck out with leave to replead; third defendant to pay costs of proceedings before Associate Judge. Costs of appeal to be plaintiff's costs in the proceedings.

CATCHWORDS : COSTS – default application to strike out defence for default of directions to serve affidavits – where default since remedied – application premature - PROCEDURE – APPEALS – appeal from decision of Associate Judge summarily dismissing claim – whether the Associate Judge erred in acceding to third defendant's application for dismissal on a ground not advanced by the third defendant – whether the Associate Judge erred in finding that the statement of claim did not plead a cause of action – whether the Associate Judge exceeded the assistance permitted to be given to an unrepresented litigant by raising an argument not advanced by the third defendant – whether the Associate Judge erred by refusing the plaintiff an opportunity to replead a cause of action where the third defendant allegedly did not oppose such a course – whether the Associate Judge of his own motion was entitled to decide whether the pleadings disclosed a reasonable cause of action – whether the Associate Judge erred in not acting on an assertion of fact made by counsel from the bar table in the absence of admitted evidence – whether the Associate Judge erred in finding that there was no evidence that demonstrated a reasonable prospect of success – where plaintiff is an executrix and does not possess relevant evidence herself – what evidence required to disclose a reasonable prospect of success – where the Associate Judge re-opened the trial pursuant Uniform Civil Procedure Rules, r. 36.16, to consider further evidence of the plaintiff – whether the Associate Judge erred in rejecting the tender of an affidavit file in another proceeding - COSTS – where plaintiff succeeded on only one of eight grounds of appeal, and plaintiff's case salvaged on re-opening.