Magann v The Trustees of the Roman Catholic Church of the Diocese of Parramatta [2018] NSWSC 1551

Supreme Court New South Wales

Medium Neutral Citation: Magann v The Trustees of the Roman Catholic Church of the Diocese of Parramatta [2018] NSWSC 1551 Hearing dates: 4 October 2018 Date of orders: 18 October 2018 Decision date: 18 October 2018 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that:

(1) Pursuant to 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) there be a separate determination of the following questions:

(a) Any liability of the defendant to the plaintiff (which is denied) was extinguished by operation of a Deed of Release between the plaintiff and the defendant dated 16 October 2007 based on the same cause of action.

(b) In the alternative to (a) an order that the terms of a Deed of Release between the plaintiff and defendant dated 16 October 2007 be specifically performed by the plaintiff.

(2) Costs of the defendant's notice of motion filed 5 April 2018 are reserved.

(3) The plaintiff's notice of motion filed 5 June 2018 is dismissed.

(4) The plaintiff is to pay the defendant's costs on an ordinary basis.

(5) The matter is listed for directions at 9.00 am on 8 November 2018 before the Registrar to obtain a hearing date for the separate determination of the above questions. Catchwords: CIVIL PROCEDURE – Separate determination of questions – Whether appropriate in the circumstances – Uniform Procedure Rules 2005 (NSW), rr 28.2 and 28.4 – Whether enforceability of Deed of Release should be heard separately

CIVIL PROCEDURE – Summary disposal – Judgment for plaintiff – Uniform Procedure Rules 2005 (NSW), r 13.1 – Where admission of incident occurring is alleged Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58 and 60 Uniform Procedure Rules 2005 (NSW), rr 13.1, 28.2 and 28.4 Cases Cited: ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037 Dunstan v Simmie & Co Pty Ltd [1978] VR 669 Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464 Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36 State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8 Valenzuela v Commonwealth Bank of Australia [2017] NSWSC 1243 Category: Procedural and other rulings Parties: Darren Peter Magann (Plaintiff) The Trustees of the Roman Catholic Church of the Diocese of Parramatta (Defendant) Representation: Counsel: P Menzies QC with C Boyd (Plaintiff) L Gyles SC with A Campbell (Defendant)