Darling v Palm Springs Ltd [2002] NSWSC 793

Darling v Palm Springs Ltd [2002] NSWSC 793

The Lithgow Valley material was not so clearly hopeless that it should be struck out because there was evidence on which it might be possible to conclude that the number of shares allotted to Mr Darling was arrived at by taking into account the availability of Lithgow Valley assets and that conduct equity might...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 August 2002
Procedural Posture
Equity Proceedings by Summons Seeking Rectification of an Agreement for Sale of Shares / Interlocutory Application by the Plaintiff Under Pt 38 R 8 of the Supreme Court Rules to Strike Out Affidavit Material
Outcome
Some parts of affidavits were struck out; other challenged material remained; the defendant was directed to file and serve a verified defence-like document; costs of the motion were ordered to be costs in the cause.
Legal Topics
['striking Out Affidavit Material' 'scandalous, Irrelevant or Otherwise Oppressive Matter' 'summary Dismissal of a Defence in Proceedings by Summons' 'rectification' 'unclean Hands Defence']
['civil Procedure' 'equity'] ['striking Out Affidavit Material' 'scandalous, Irrelevant or Otherwise Oppressive Matter' 'summary Dismissal of a Defence in Proceedings by Summons' 'rectification' 'unclean Hands Defence']

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Procedural Posture

Equity Proceedings by Summons Seeking Rectification of an Agreement for Sale of Shares / Interlocutory Application by the Plaintiff Under Pt 38 R 8 of the Supreme Court Rules to Strike Out Affidavit Material

Legal Issues

  1. 1 ['Whether Pt 38 r 8 of the Supreme Court Rules could be used in proceedings brought by summons to achieve the same effect as summary dismissal of a defence which does not deserve to go to trial.' 'Whether affidavit material filed by Palm Springs concerning alleged misrepresentations or breaches of fiduciary duty by Mr Darling in relation to Lithgow Valley was relevant to an unclean hands defence to rectification.' "Whether material concerning Mr Darling's dismissal as an executive of Palm Springs and remote background events should be struck out as irrelevant or oppressive."]

Ratio Decidendi

The Lithgow Valley material was not so clearly hopeless that it should be struck out because there was evidence on which it might be possible to conclude that the number of shares allotted to Mr Darling was arrived at by taking into account the availability of Lithgow Valley assets and that conduct equity might regard as bad behaviour played a role in that number being arrived at or maintained. However, material about unrelated complaints leading to Mr Darling's dismissal and remote background matters was irrelevant or incapable of affecting the probabilities of facts in issue and should be struck out.

Court Disposition

Some parts of affidavits were struck out; other challenged material remained; the defendant was directed to file and serve a verified defence-like document; costs of the motion were ordered to be costs in the cause.

Orders

  • ['In the affidavit of John Kenneth Bowman of 21 November 2001, paragraph 2 was struck out; in paragraph 4, the third sentence beginning "I recall that" to the end of the paragraph was struck out; paragraph 5 was struck out; in paragraph 6, second sentence, the words "and I believe that Mr Darling\'s business lost...