Goodridge v Barwick [2007] NSWSC 994

New South Wales Supreme Court

CITATION : Goodridge v Barwick [2007] NSWSC 994

HEARING DATE(S) : 31 August 2007

JUDGMENT DATE : 6 September 2007

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Harrison

DECISION : (1) The plaintiff's notice of motion filed 20 August 2007 is dismissed; (2) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS : Strike out defence, summary judgment - money due

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW) rr 13.1, 13.4, 14.28

CASES CITED : General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

PARTIES : Ross Ian Goodridge - Plaintiff Adrian Garfield Barwick - Defendant

FILE NUMBER(S) : SC 11029/2007

COUNSEL : Mr N Cotman SC - Plaintiff Mr S Philips - Defendant

SOLICITORS : McCabe Terrill Lawyers - Plaintiff Somerville & Co - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 6 SEPTEMBER 2007

11029/2007 - ROSS IAN GOODRIDGE v ADRIAN GARFIELD BARWICK

JUDGMENT (Strike out defence, summary judgment - money due) 1 HER HONOUR: By notice of motion filed 20 August 2007, the plaintiff seeks firstly, an order for judgment pursuant to Part 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR); and secondly, in the alternative, an order pursuant to Part 35.1 and/or Part 42.20 and/or Part 13.4 of the UCPR that the defence be struck out and judgment be entered for the plaintiff. 2 On 7 August 2007, the plaintiff filed an amended statement of claim. Time for filing a defence to the amended statement of claim would have expired on 21 August 2007. Nevertheless, the plaintiff elected to file a notice of motion seeking summary judgment before the time for filing a defence had expired. The Court does not condone this behaviour. 3 Mr Goodridge is a practising barrister. He relied on his affidavit dated 11 June 2007. Mr Barwick is a practising solicitor. He relied on his affidavit sworn 23 July 2007. 4 On 12 September 2001, Mr Goodridge and Mr Barwick entered into a Heads of Agreement. It relevantly provided: "1. Ross Ian Goodridge ("RG") and Adrian Garfield Barwick ("AGB") are desirous of setting out by way of Heads of Agreement their intention to join as shareholders and form ultimately an incorporated law firm. 2. RB and AGB are hereinafter referred to as "the original shareholders". 3. The name of the law firm is yet to be agreed upon. The current working name is "Employment Lawyers". 4. The management of Employment Lawyers shall be vested in the Board of Directors. 5. The directors of Employment Lawyers shall be the original shareholders and such further or other directors invited to join the board pursuant to the Articles of Association of the company. 6. AGB is to be employed as the first solicitor of Employment Lawyers and as the employed solicitor shall be entitled to draw a salary in addition to any dividend he may otherwise be entitled. 7. AGB commits himself to use his best and full-time endeavours as an employed solicitor for the benefit of Employment Lawyers. 8. As an employed solicitor, AGB shall be entitled a salary payable by Employment Lawyers at the rate of $2,000 per week. … 14. The shareholders will be liable for all debts in the ratio of their shareholding." 5 It seems that Mr Goodridge's shareholding was 80% and Mr Barwick's was 20%. They were good friends. Mr Goodridge provided funds to set up and run the business. That much, I think, is common ground.