Cairns v Freeman & ors [2008] NSWSC 792

Cairns v Freeman & ors [2008] NSWSC 792

The judge held that the Associate Judge erred by refusing to admit Unicomb's affidavit (filed in another proceeding) which showed there might be evidence at trial supportive of Ms Cairns's claim, and thus it could not be said that her case was manifestly hopeless. The appeal was allowed, the summary dismissal was set aside, and paragraphs 100–106 of the Statement of Claim were struck out with leave to replead. The third defendant was awarded costs of proceedings before the Associate Judge; costs of the appeal were to be the plaintiff's costs in the proceedings.

Parties
Plaintiff: Suzanne Rose Cairns; First Defendant: Glenn Arthur Freeman; Second Defendant: Michael Charles Unicomb; Third Defendant: Warren Donald Turner
Jurisdiction
Australia
Judgment Date
06 June 2008
Procedural Posture
Civil / Appeal From Summary Dismissal (equity Division, NSW Supreme Court, Ex Tempore Judgment)
Outcome
Appeal allowed. Orders for summary dismissal set aside; part of the pleading struck out with leave to replead; third defendant to have costs of proceedings before Associate Judge; appeal costs to be plaintiff's costs in proceedings.
Legal Topics
Costs, Summary Dismissal, Striking Out Pleadings, Appeal Procedure, Default in Compliance With Directions
Civil Procedure Equity Costs Summary Dismissal Striking Out Pleadings Appeal Procedure Default in Compliance With Directions

Case Brief

Summary, issues, holding and outcome

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Parties

Suzanne Rose Cairns

Plaintiff

Glenn Arthur Freeman

First Defendant

Michael Charles Unicomb

Second Defendant

Warren Donald Turner

Third Defendant

Procedural Posture

Civil / Appeal From Summary Dismissal (equity Division, NSW Supreme Court, Ex Tempore Judgment)

Legal Issues

  1. 1 Whether the Associate Judge erred in summarily dismissing the plaintiff's claim against the third defendant for lack of sufficient pleading and evidence
  2. 2 Whether the statement of claim disclosed a reasonable cause of action against the third defendant
  3. 3 Whether the Associate Judge erred by not allowing leave to replead

Ratio Decidendi

The judge held that the Associate Judge erred by refusing to admit Unicomb's affidavit (filed in another proceeding) which showed there might be evidence at trial supportive of Ms Cairns's claim, and thus it could not be said that her case was manifestly hopeless. The appeal was allowed, the summary dismissal was set aside, and paragraphs 100–106 of the Statement of Claim were struck out with leave to replead. The third defendant was awarded costs of proceedings before the Associate Judge; costs of the appeal were to be the plaintiff's costs in the proceedings.

Court Disposition

Appeal allowed. Orders for summary dismissal set aside; part of the pleading struck out with leave to replead; third defendant to have costs of proceedings before Associate Judge; appeal costs to be plaintiff's costs in proceedings.

Orders

  • Order that the appeal be allowed.
  • Set aside orders 1, 3, 5 and 6 made by the Associate Judge on 26 February 2008.