Trigger v Moloney [1999] NSWSC 679 (7 July 1999)

Last Updated: 8 July 1999

NEW SOUTH WALES SUPREME COURT

CITATION: TRIGGER v MOLONEY [1999] NSWSC 679

CURRENT JURISDICTION: COMMON LAW

FILE NUMBER(S): 20166/1999

HEARING DATE{S): 17 June 1999

JUDGMENT DATE: 07/07/1999

PARTIES:

RODNEY WAYNE TRIGGER

v

MICHAEL JOHN MOLONEY

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

PLAINTIFF: PATRICIA McDONALD

DEFENDANT: MR J IRELAND QC

SOLICITORS:

PLAINTIFF: WHITELAW MCDONALD

DEFENDANT: EDDY & MOLONEY

CATCHWORDS:

Summary dismissal

claim doomed to failure

no question of principle.

ACTS CITED:

Fair Trading Act 1987 42.

Trade Practices Act 1974 s 52.

Supreme Court Rules 1970 Pt. 13 r 5.

DECISION:

SEE PARAGRAPH 13.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 7 JULY 1999

20166/99 RODNEY WAYNE TRIGGER v MICHAEL JOHN MOLONEY

JUDGMENT

1 In September 1995, the defendant was carrying on business as a finance broker. The plaintiff was the owner of a property at Weston (the property). The plaintiff approached the defendant to arrange a loan on the security of the property. The plaintiff attended at the office of the defendant and discussion took place between them. A loan was arranged in the sum of $10,000.00. A solicitor (Diana Karageorge) acted for the plaintiff in the mortgage transaction. The transaction was completed and moneys were advanced to the plaintiff.

2 The purpose of the loan had been to enable the plaintiff to go into a bush rock business with Peter O'Shea. The plaintiff has said that he signed relevant documentation when suffering from the delusion that he was going to make a lot of money out of the business. Following the making of the advance, moneys were handed over to Peter O'Shea. It appears that Peter O'Shea may have gambled away the moneys. He then committed suicide. As a consequence, the plaintiff did not obtain any benefit from the business dealing with Peter O'Shea.

3 The mortgage was for a period of one year and had a fixed rate of interest. The plaintiff paid interest under the mortgage and at the end of the year it was renewed for a further period of one year. This was done at the written request of the plaintiff. Interest was paid pursuant to the renewed mortgage. However, default took place in the payment of the principal at the end of the term. It appears that the plaintiff had received some legal advice which led him to the view that he should challenge the mortgage itself.

4 Thereafter, the mortgagee brought proceedings founded upon default under the mortgage and claiming an order for possession. These proceedings remain on foot and are being defended. A Cross-claim has been brought against Diana Karageorge. It appears that the present proceedings could have been brought by way of Cross-claim in the possession proceedings, however because of a perceived limitation problem separate proceedings were in fact instituted. The Court has been informed that arrangements have been made for both proceedings to be heard together (subject to the application which is now before the Court).

5 The Statement of Claim was filed on 24 September 1998. It claims damages for inter alia depression, anxiety and economic loss. The claim is founded on alleged misleading or deceptive conduct within the meaning of both s 52 of the Trade Practices Act 1974 and s 42 of the Fair Trading Act 1987. It is alleged that four false representations were made by the defendant. The alleged representations are as follows:-

"(a) The defendant held himself out as a solicitor acting for the plaintiff in relation to the loan transaction.

(b) The defendant stated that the plaintiff was seeking a loan of $10,000.

(c) The defendant stated that the plaintiff owned a car to the value of $7,500.

(d) The defendant stated that the plaintiff was earning $500 per week as a musician."

These are representations which are alleged to have been made to the mortgagee. In substance, the thrust of the plaintiff's claim is that they led to him getting a loan which was larger than he wanted (he contends that he wanted only about $4,000).

6 The application before the Court is made pursuant to Notice of Motion filed on 6 April 1999. The defendant seeks a summary dismissal of the proceedings pursuant to Pt. 13 r 5 of the Supreme Court Rules 1970.

7 The defendant has sworn an affidavit. The plaintiff has sworn an affidavit (which annexes an earlier affidavit sworn by him). He has been cross-examined. There has been a tender of documentation.

8 The granting of summary relief has been the subject of more than abundant authority. The Court has a discretionary power to summarily terminate proceedings prior to trial. The discretion is exercised having regard to the relevant circumstances of the particular case before the Court and so that justice is best served between the parties. The onus rests with the applicant. The view has been taken that summary relief should only be granted in what may be described as clear cases (see inter alia Webster v Lampard [1993] HCA 57; 177 CLR 598).

9 In resisting the application, the plaintiff places stress on two matters. It is said that the material throws up conflict on matters of fact and that the granting of the relief would deprive the plaintiff of the benefit that may be gleaned from the exercise of the interlocutory processes of the Court.

10 There is affidavit and other material which does give rise to some questions of fact (relevant to inter alia the alleged representations). There is other oral evidence from the plaintiff (as well as other material) which diminishes the force that may be given to the area of apparent dispute. The recollection of the plaintiff is defective. This is a matter that he concedes (inter alia he has conceded that he does not have a good recollection of what was said during discussion with the defendant). What he has said stands in conflict with a body of documentation. The defendant's argument that the plaintiff's evidence which gives rise to that dispute would not be accepted is highly persuasive. There is force in the view that the area of dispute is more apparent than real.

11 Relevant documentation has been made available to the parties and it seems likely that any further exploration of interlocutory processes may not assist in advancing the plaintiff's case.

12 But whether or not there may be real questions of fact, I am satisfied that the plaintiff's claim is otherwise doomed to failure. There are inter alia questions of causation. It seems to me that these are insurmountable and that there is no utility in allowing the proceedings to go to trial. I am of the view that the interests of justice are best served by bringing these proceedings to an end summarily. A trial would merely see needless costs being thrown away and a waste of valuable court time.

13 I order that the proceedings be dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.

**********

LAST UPDATED: 07/07/1999