Carter v Schmitt [2005] NSWSC 956

Carter v Schmitt [2005] NSWSC 956

The Plaintiff was not entitled to summary judgment or judgment on admissions because serious allegations of fraud and deceit concerning a fundamental representation about the Road Bore, and the consequent validity of the 1998 agreement and release, raised real questions to be tried and made summary declaratory relief inappropriate. The claims in the cross-claim should not be summarily dismissed as hopeless, including the Fair Trading Act claim, but parts of the cross-claim were defectively pleaded for lack of specificity, particularity, and connection between wrongdoing and damage, so the cross-claim was struck out with leave to replead.

Jurisdiction
Australia
Judgment Date
23 September 2005
Procedural Posture
Practice; Summary Judgment; Judgment on Admissions; Summary Dismissal of Cross Claim; Striking Out of Pleading / Interlocutory Notices of Motion in the Supreme Court of New South Wales, Equity Division
Outcome
Cross-claim struck out with leave to file an amended cross-claim; Plaintiff's amended notice of motion otherwise dismissed; Defendants' notice of motion stood over generally with liberty to restore.
Legal Topics
['summary Judgment' 'judgment on Admissions' 'summary Dismissal' 'striking Out Pleadings' 'share Farming Agreements' 'option to Renew' 'deceit and Fraud' 'misleading or Deceptive Conduct' 'limitation Period']
['civil Procedure' 'contract' 'tort' 'fair Trading'] ['summary Judgment' 'judgment on Admissions' 'summary Dismissal' 'striking Out Pleadings' 'share Farming Agreements' 'option to Renew' 'deceit and Fraud' 'misleading or Deceptive Conduct' 'limitation Period']

Case Brief

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Procedural Posture

Practice; Summary Judgment; Judgment on Admissions; Summary Dismissal of Cross Claim; Striking Out of Pleading / Interlocutory Notices of Motion in the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ['Whether the Plaintiff should have summary judgment or judgment on admissions for declarations that the Defendants had not validly exercised the option to renew the 1998 agreement and that the agreement ended by effluxion of time on 4 November 2003.' "Whether parts of the Defendants' cross-claim should be summarily dismissed on the basis that no reasonable cause of action was disclosed." "Whether the Defendants' claims alleging fraud, deceit, and misleading or deceptive conduct should be determined summarily before a defence, particulars, discovery and interrogatories." 'Whether the pleading of the cross-claim was defective for lack of specificity, particularity, and linkage between alleged wrongdoing and damage.']

Ratio Decidendi

The Plaintiff was not entitled to summary judgment or judgment on admissions because serious allegations of fraud and deceit concerning a fundamental representation about the Road Bore, and the consequent validity of the 1998 agreement and release, raised real questions to be tried and made summary declaratory relief inappropriate. The claims in the cross-claim should not be summarily dismissed as hopeless, including the Fair Trading Act claim, but parts of the cross-claim were defectively pleaded for lack of specificity, particularity, and connection between wrongdoing and damage, so the cross-claim was struck out with leave to replead.

Court Disposition

Cross-claim struck out with leave to file an amended cross-claim; Plaintiff's amended notice of motion otherwise dismissed; Defendants' notice of motion stood over generally with liberty to restore.

Orders

  • ['I order that the cross-claim be struck out, and that the Defendants have leave to file an amended cross-claim on or before 7 October 2005.' 'I order that the amended notice of motion filed by the Plaintiff on 8 December 2004 be otherwise dismissed.' 'I order that the costs of the aforesaid notice of motion be the...