The Supreme Court of New South Wales case, Hermitage v Fargun Bewdy Pty Limited NSWSC 1200, heard on 1 October 2025 and decided on 13 October 2025, involved an application to substitute a de facto partner as the plaintiff after the original plaintiff, John Hermitage, had passed away. The original plaintiff had filed an amended statement of claim on 22 June 2023, alleging breach of contract and contraventions of Australian Consumer Law provisions, including deceptive and misleading conduct and unconscionable conduct. The court ultimately dismissed the application to substitute the de facto partner and also dismissed the original statement of claim.
Key details of the case
- Case Name: Hermitage v Fargun Bewdy Pty Limited
- Medium Neutral Citation: NSWSC 1200
- Court: Supreme Court of New South Wales
- Hearing Date: 1 October 2025
- Decision Date: 13 October 2025
- Original Plaintiff: John Hermitage (deceased)
- Applicant for Substitution: Dianne Verlie French (de facto partner of the deceased plaintiff)
- First Defendant: Fargun Bewdy Pty Limited
- Second Defendant: Peter Politis
- Third Defendant: Charles Parisi
- File Number: 2022/93985
- Original Claim: Allegations of breach of contract and contraventions of the Australian Consumer Law (misleading and deceptive conduct, unconscionable conduct).
- Outcome: Application for substitution dismissed. Amended statement of claim dismissed.
Simple summary of the case
The case of Hermitage v Fargun Bewdy Pty Limited revolves around a legal battle initiated by John Hermitage, who later passed away. Before his death, Mr. Hermitage had lodged claims against Fargun Bewdy Pty Limited and two other individuals, alleging they had engaged in misleading, deceptive, and unconscionable conduct, and breached a contract. These claims were primarily based on alleged misrepresentations made during negotiations concerning a debt and a settlement regarding a separate legal action.
After Mr. Hermitage’s death, his de facto partner, Dianne French, sought to step into his shoes as the plaintiff to continue the legal proceedings. She argued that she should be substituted because she was his de facto partner and had knowledge of the case. However, the defendants opposed this, raising several crucial points. Primarily, they argued that the claims under the Australian Consumer Law, which focus on personal loss or damage, did not survive the plaintiff’s death. They contended that these specific types of claims are not assignable or capable of being continued by an estate or a de facto partner because the right to sue is personal to the individual who suffered the loss.
The court agreed with the defendants on this point. It found that the claims based on misleading and deceptive conduct under the Australian Consumer Law were personal and did not survive the plaintiff’s death. Therefore, the application to substitute Ms. French as the plaintiff could not proceed on these grounds. Even if there were other potential claims, such as breach of contract, that might survive, the court considered the overall circumstances. It noted the lack of evidence regarding the deceased’s estate, the wishes of other beneficiaries, and Ms. French’s financial capacity to cover potential costs if the case failed. Furthermore, the court highlighted the plaintiff’s history of dilatory conduct in the proceedings before his death.
Given these issues, particularly the survival of the main claims and the procedural concerns, the court decided to dismiss Ms. French’s application to be substituted as the plaintiff. Consequently, the amended statement of claim filed by Mr. Hermitage was also dismissed, effectively ending the legal proceedings.
Q&A
- Q: Is it legal for a de facto partner to be substituted as a plaintiff if the original plaintiff dies?
- A: It can be legal, but it depends on whether the cause of action survives the death of the original plaintiff. In this case, the specific claims under the Australian Consumer Law were found not to survive.
- Q: What happens to legal claims when a person dies?
- A: Generally, if a cause of action is personal and relates to the individual’s own loss or suffering, it may not survive their death. However, certain contractual or property-related claims might pass to the estate. The Law Reform (Miscellaneous Provisions) Act 1944 (NSW) allows for the survival of certain causes of action.
- Q: Can claims based on misleading or deceptive conduct be continued after death?
- A: The court found that claims for damages under the Australian Consumer Law for misleading or deceptive conduct are personal and do not survive the death of the person who suffered the loss.
- Q: What is the ‘Australian Consumer Law’?
- A: It’s a national law in Australia that protects consumers and ensures fair trading practices. It covers things like misleading advertising, unfair contract terms, and product safety.
- Q: What does ‘unconscionable conduct’ mean in this context?
- A: It refers to conduct that is so unfair or one-sided that it goes against good conscience, often involving exploitation of a weaker party.
- Q: Why did the court consider the financial situation of the de facto partner?
- A: When a party is substituted, the court needs to ensure that the proceedings can be properly funded and that the other parties have recourse for costs if they win. A lack of financial capacity can lead to dismissal.
- Q: What is a ‘statement of claim’?
- A: It’s a legal document that sets out the plaintiff’s case, including the facts, the legal basis for the claim, and the remedy sought.
- Q: What does it mean for a case to be ‘dilatory’?
- A: It means the case has been unnecessarily delayed or conducted in a slow and inefficient manner.
- Q: What is a ‘notice of motion’?
- A: It’s a formal request made to the court for a specific order or action.
- Q: What are ‘costs’ in a legal case?
- A: These are the expenses incurred by the parties in pursuing or defending a lawsuit, which can include legal fees and court charges. Often, the losing party has to pay the winning party’s costs.
- Q: What is ‘probate’?
- A: Probate is the legal process of confirming the validity of a will and appointing an executor to manage the deceased’s estate.
- Q: Why was the theft of a written agreement relevant?
- A: It meant that crucial evidence of the agreement was unavailable to the court, making it harder to prove the terms of the contract.
- Q: What is an ‘amended statement of claim’?
- A: It’s a revised version of the original statement of claim, filed after initial errors or omissions have been identified and corrected.
- Q: What does it mean for a cause of action to ‘abate’?
- A: Abatement means the legal action ends without being decided on its merits, often due to a procedural issue like the death of a party when the claim doesn’t survive.
- Q: Was the de facto partner given any chance to provide more evidence?
- A: The court noted that the applicant’s case lacked essential evidence, and further directions were given for parties to file additional evidence and submissions. However, ultimately, the court made its decision based on the material presented.
You can find the full judgement details here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2025/1200.html.
For more simplified cases from NSW Supreme Court, check out these cases: https://medigosa.com/category/nsw-supreme-court-cases/.