BENCE & BENCE

The parties to this proceeding were Bence & Bence Pty Ltd (the applicant) and Bence & Bence Pty Ltd (the respondent). The dispute concerned the applicant's application to strike out the respondent's defence in its entirety, or in the alternative, to strike out specific paragraphs of the defence and enter judgment for the applicant. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the respondent's defence was an abuse of process, and therefore liable to be struck out. This involved considering whether the defence was a sham, lacking in bona fides, or otherwise so weak as to be incapable of raising a real question to be tried. The Court also had to determine whether, if the defence was not struck out entirely, certain paragraphs thereof should be struck out as embarrassing or otherwise an abuse of process.

Johns J found that the respondent's defence, while perhaps lacking in detail in certain respects, did not amount to an abuse of process. His Honour reasoned that the defence, when read as a whole, raised a number of points that were arguable and capable of being tried. The Court applied the principles that a defence should not be struck out unless it is clear that it has no real prospect of success, and that striking out is a drastic remedy that should be reserved for cases where the defence is demonstrably without merit.

The application to strike out the defence in its entirety was dismissed. The application to strike out specific paragraphs of the defence was also dismissed. The Court ordered that the respondent file and serve an amended defence within 14 days.