Williamson v Elders Rural Services & ors

Judgment - ex tempore (revised)

1. In these proceedings there are a series of issues for determination.
2. To begin with, the Court made orders on 23 April 2020 pursuant to s 61 of the Civil Procedure Act 2005 (NSW), and r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), that two questions be determined as preliminary questions in the proceedings separate to all other issues. Those questions are in the following terms: 1. whether the plaintiff was a person under legal incapacity, for the purposes of Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 (NSW) or in any other sense, during the period 27-29 November 2017, [or] at any other time prior to 30 June 2018 (and if so when); and 2. if so, whether the judgment of Johnson J in proceedings 2015/226349 delivered on 19 December 2018 could and should be set aside.
3. It will be apparent from the terms in which those questions are posed that if the first question is answered in the negative, the second question does not arise.
4. Also before the Court is an amended notice of motion brought by the plaintiff seeking leave to rely on an amended statement of claim in the form of MFI 1.
5. Finally, each of the defendants in the proceedings seeks orders pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) that the plaintiff be prohibited from instituting proceedings in New South Wales against the defendants or their employees, directors, officers or legal representatives.
6. Before addressing the issues in that order, it is necessary for me to set out some brief background to the litigation between the plaintiff and the defendants.
7. In 2005 the plaintiff brought proceedings in this Court alleging, amongst other things, a fraudulent misrepresentation by an employee of the first defendant, Leslie Joseph Hannan. Those proceedings resulted in a judgment for the first defendant, Elders Rural Services Australia Limited, delivered by Johnson J on 19 December 2018. [1]
8. Johnson J set out the nature of the proceedings brought by the plaintiff in the following terms: [2] [3] Put shortly, the Plaintiff alleges that a fraudulent misrepresentation was made by an employee of the Defendant, Leslie Joseph Hannan, in relation to the sale to the Plaintiff of a property known as "Reevesdale" at Bungonia. Bungonia is a small town in the Southern Tablelands of New South Wales. The sale of "Reevesdale" occurred in July 2007 when the Defendant (then known as Elders Limited), was joint agent for the sale of that property. Mr Hannan, who is now deceased, was a licensed real estate agent and an employee of the Defendant, who accompanied the Plaintiff on an inspection of "Reevesdale" in April 2007. [4] The Plaintiff alleges that Mr Hannan fraudulently misrepresented the reason why the vendor was selling "Reevesdale". It is alleged that Mr Hannan was aware at that time (prior to July 2007) that the true reason why "Reevesdale" was on the market at the price then being sought was because an application had been made for a quarry to be built on a nearby property, "Ardmore Park". The Plaintiff contends that Mr Hannan gave the reason for the vendor selling the property as being the alleged presence of ghosts in "Reevesdale". [5] The Plaintiff claims to have purchased "Reevesdale" in reliance upon this representation by Mr Hannan, and claims to have suffered loss by reason of his purchase of the property. He alleges that, if he had known of the proposed quarry on "Ardmore Park", he would not have purchased "Reevesdale". The Plaintiff contends as well that he would not have engaged in a refinancing exercise with Rabobank Australia Limited for both the purchase of "Reevesdale" and the refinancing of his residential property in Cascade Street, Paddington. [6] By its Defence to the Third Amended Statement of Claim filed on 19 June 2017, the Defendant denies any liability to the Plaintiff, including a denial that any fraudulent representation was made by Mr Hannan. The Defendant raises as well other defences to the Plaintiff's claim, including a contention that the proceedings are statute-barred by operation of s 14(1)(b) of the Limitation Act 1969 (NSW).