Renshaw v New South Wales Lotteries Corporation Pty Ltd [2018] NSWSC 1954

Supreme Court New South Wales

Medium Neutral Citation: Renshaw v New South Wales Lotteries Corporation Pty Ltd [2018] NSWSC 1954 Hearing dates: 6 March 2018 Date of orders: 14 December 2018 Decision date: 14 December 2018 Jurisdiction: Common Law Before: Walton J Decision: The Court makes the following directions:

(1) The defendants shall bring in short minutes of order reflecting this judgment on the amended notice of motion within 14 days.

(2) In the event that neither party agitates the question of costs beyond the observations in [234] of this judgment, the short minutes of order in (1) above will incorporate a provision giving effect to the same.

(3) In the event that costs are pursued, then the short minutes of order shall convey that costs are reserved.

(4) In the event that costs are reserved, the following program for submissions as to costs shall apply:

(a) By no later than 14 days from the execution of the short minutes of order, the moving party on costs shall file and serve submissions in support of that application, the proposed order for costs and any evidence relevant to the question of costs;

(b) Within 14 days of service of the submissions and evidence as to costs by the moving party, the responding party shall file and serve any submissions and evidence in reply;

(c) In the event that both parties seek an order for costs, the defendants shall be the moving party and Mr Renshaw shall be the responding party for the purpose of these directions; and

(d) Any issue as to costs shall be resolved on the papers except where either party seeks an oral hearing as to costs in which case, the question of costs shall be listed for hearing. Catchwords: CIVIL PROCEDURE – strike out application – claim for unclaimed lotteries prize from 1997 – claims in contract, tort, misleading and deceptive conduct, trust and restitution – defence under the Limitation Act – relevant principles to strike out applications – relevant principles relating to the Limitation Act – terms of contract found in Oz Lotto Rules – plaintiff unable to satisfy the Rules – claim in contract doomed to fail – claim in trust rose no higher than claim in contract – claim for restitution inconsistent with contract – alternative, whether the limitation period for the claims in contract, negligence, trust and restitution was suspended by ss 52 and 56 of the Limitation Act – claims in contract, negligence, trust and restitution also time barred by Limitation Act – claim for misleading or deceptive conduct time barred by limitation period in s 82 of Trade Practices Act and s 68 of Fair Trading Act – whether pleadings may be struck out as a result of a limitation defence – claims in contract, negligence, trust and restitution may be struck out – claim for misleading or deceptive may not be struck out as a result of a limitation defence only – absence of framing strike out application as abuse of process – leave not granted to re-plead with respect to claims in contract, negligence, trust and restitution – part of the second amended statement of claim struck out Legislation Cited: Civil Procedure Act 2005 (NSW) Fair Trading Act 1987 (NSW) Limitation Act 1969 (NSW) Limitation of Actions Act 1958 (Vic) Lotteries Corporatisation Act 1996 (NSW) Public Lotteries Act 1996 (NSW) Public Lotteries Regulation 2016 Trade Practices Act 1974 (Cth) Trade Practices Amendment Act (No 1) 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian Mid-Eastern Club Ltd v Elbakht (1988) 13 NSWLR 697 Barnes v Addy (1874) LR 9 Ch App 244 Bradley v Eagle Star Insurance Company Ltd [1989] AC 957 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Charles Forte Investments Ltd v Amanda [1964] Ch 240 Clemett v NSW Lotteries Corporation Pty Ltd [2014] NSWSC 373 Commonwealth of Australia v Mewett (1995) 140 ALR 99 Domer v Gulf Oil (Great Britain) Ltd (1975) 119 Sol Jo 392 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Gunns Ltd v Marr [2005] VSC 251 Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 Harris v Newcastle-upon-Tyne Health Authority [1989] 2 All ER 273 Hillebrand v Penrith Council [2000] NSWSC 1058 Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd [1899] 1 QB 86 Huntley Management Ltd v Australian Olives Ltd (2010) 186 FCR 430; [2010] FCAFC 98 Jordan v Money (1854) 10 ER 868 Karaagac v GRA Insurance Ltd (Unreported, Court of Appeal of New South Wales, Meagher JA, 26 April 1989) Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; [2015] HCA 6 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 McGuirk v University of New South Wales [2009] NSWSC 1424 Meckiff v Simpson [1968] VR 62 Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 National Australia Bank v Sayed (No 6) [2016] NSWSC 1253 Palmdale Insurance Ltd (in liq) v L Grollo & Co Pty Ltd [1986] VR 408 Phillips-Higgins v Harper [1954] 1 QB 411 Rainy v Bravo (1872) LR 4 PC 287 Reinhold v New South Wales Lotteries Corporation [2008] NSWSC 5 Remmington v Scoles [1897] 2 Ch 1 Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 Shortland Electricity v O'Connor [1999] NSWCA 87 Sinclair v Registrar-General [2010] NSWSC 173 Strano v Australian Capital Territory (2016) 306 FLR 232; [2016] ACTSC 4 Van Win Pty Ltd v Eleventh Mirontron Pty Ltd [1986] VR 484 Waller v Waller [2008] WASC 51 Waller v Waller [2009] WASCA 61 Texts Cited: G E Dal Pont, Law of Limitation (LexisNexis Butterworths, 2016) Judicial Commission of NSW, Civil Trials Bench Book (at 15 November 2018) LexisNexis, Richie's Uniform Civil Procedure NSW (at 5 November 2018) New South Wales, New South Wales Government Gazette, No 142, 24 December 1993 New South Wales, New South Wales Government Gazette, No 68, 25 June 1997 Category: Procedural and other rulings Parties: David Owen Renshaw (Plaintiff / Respondent) New South Wales Lotteries Corporation Pty Ltd (First Defendant / First Applicant on Motion) The State of New South Wales (Second Defendant / Second Applicant on Motion) Representation: Counsel: J Hogan-Doran (Defendants / Applicants on Motion)