NSW Caselaw
New South Wales Supreme Court
CITATION : Irons v Calleja & ors [2009] NSWSC 1224
HEARING DATE(S) : 26 October 2009
JUDGMENT DATE : 19 November 2009
JUDGMENT OF : R A Hulme J
DECISION : The second defendant's notice of motion is dismissed with costs.
CATCHWORDS : PROCEDURE - judgments and orders - application for summary dismissal or striking out
LEGISLATION CITED : Uniform Civil Procedure Rules 2005
Agar v Hyde [2000] HCA 41; 201 CLR 552 Dey v Victorian Railways Commissioners (1949) 78 CLR 61 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 CASES CITED : General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Graham v Hall & Anor [2006] NSWCA 208; 67 NSWLR 135 Walton v Gardiner (1993) 177 CLR 378 Webster v Lampard (1993) 177 CLR 602
Merle Irons (Plaintiff) PARTIES : John Calleja (First Defendant) Royal Guardian Mortgage Corporation Pty Ltd (Second Defendant) Martin Cooper (Third Defendant)
FILE NUMBER(S) : SC 20442/08
COUNSEL : Mr A Rogers (Plaintiff) Mr M W Young (Second Defendant)
SOLICITORS : Tsolakis Solicitors Bransgroves Lawyers
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
R A Hulme J
19 November 2009
20442/08 Irons v Calleja & ors
JUDGMENT
1 HIS HONOUR: This is an application by the second defendant, Royal Guardian Mortgage Corporation Pty Ltd ("RGMC") for summary dismissal, alternatively striking out, of a statement of claim insofar as it concerns itself. It is alleged in the statement of claim that the first defendant, Mr John Callega, committed fraud in obtaining a loan of $580,000 purportedly on behalf of the plaintiff, Ms Merle Irons; that RGMC, a mortgage originator and manager, breached a duty to make enquiries about the loan application because it knew or ought to have known that the representation by Mr Callega that Ms Irons wanted the loan was false; and that the third defendant, Mr Martin Cooper, was responsible for attesting a signature on a statutory declaration that was purported to be Ms Irons' when he did not see Ms Irons sign that document.
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