Bushra v Anchor Immigration trading as Anchor Immigration

[2025] NSWDC 39

District Court

New South Wales

Medium Neutral Citation:

Bushra v Anchor Immigration trading as Anchor Immigration [2025] NSWDC 39

Hearing dates:

14 February 2025

Date of orders:

14 February 2025

Decision date:

14 February 2025

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

Orders:

In relation to the Notice of Motion filed on 19 December 2024:

(1) The Notice of Motion is dismissed.

(2) The plaintiff is to pay the second defendant’s costs of the Notice of Motion as agreed or assessed.

(3) The plaintiff is to serve a further version of the Amended Statement of Claim on the defendant’s solicitor by 5pm on 7 March 2025.

(4) In the event consent is not granted to file the proposed Amended Statement of Claim, the plaintiff is to file and serve a Notice of Motion seeking leave by 26 March 2025 returnable for directions, and if appropriate hearing, on 3 April 2025 at 9:30am.

(5) The matter is listed for directions before the List Judge on 3 April 2025 at 9:30am.

(6) Liberty to apply on 2 business days’ notice.

Catchwords:

PRACTICE AND PROCEDURE – leave to file an Amended Statement of Claim – whether leave should be granted to replead

Legislation Cited:

Australian Consumer Law

Civil Procedure Act 2005 (NSW)

Cases Cited:

Lin v State of New South Wales [2024] NSWSC 653

Category:

Procedural rulings

Parties:

Anyat Bushra (Plaintiff)
Anchor Immigration trading as Anchor Immigration (First Defendant)
Raefat Soryal (Second Defendant)

Representation:

Counsel:
S Kikkert (Plaintiff)
C Coventry (Second Defendant)

Solicitors:
AR Law Services (Plaintiff)
DLA Piper Australia (Second Defendant)

File Number(s):

2024/00288234

Publication restriction:

No

JUDGMENT – EX TEMPORE

1. Before the Court for determination is a Notice of Motion filed on 19 December 2024 by the plaintiff seeking leave, in substance, to file an Amended Statement of Claim. The second defendant, who was represented by Ms Coventry of counsel, opposes the leave sought. In support of the application, the plaintiff read the affidavit of Jacquilyn Magallena Reyes dated 19 December 2024. The defendant read the affidavit of James Derek Berg of 3 February 2025.

2. The second defendant had filed written submissions from Ms Coventry of counsel in support of the second defendant’s opposition to the leave.

3. Mr Kikkert of counsel, who appears for the plaintiff, initially sought to defend the proposed Amended Statement of Claim. He submitted that the draft of the pleading:

1. Achieved the basic requirement of procedural fairness;

2. Indicated which facts were relevant;

3. Brought to light the real issues in the case; and

4. Was as brief as required and was not embarrassing in a legal sense.

4. In the course of discussion with Mr Kikkert, the Court took counsel for the plaintiff to various aspects of the proposed pleading which raised issues of concern. These included:

1. Ambiguity as to which defendant was referred to in paragraphs 1 and 2 of the proposed pleading;

2. Some vagueness in the setting out of the relevant contract said to have been entered into between the parties. Mr Kikkert, in the course of discussion, said that the contract was alleged between the plaintiff and both defendants referred to in the amended pleading;

3. The nature of the contract alleged, and whether it was express or implied, and whether in writing or oral. The precise terms of the alleged contract appear to be vague in the proposed pleading;

4. It was unclear whether the duty of care referred to in paragraphs 5 and 8-9 was an implied duty arising from the contract as a matter of law, although Mr Kikkert said that was in relation to what appears in paragraph 9. Clearly, the scope of an implied duty of care in a contract as a matter of law may be influenced by the terms of the contract alleged. That is relevant for a defendant to be aware of;

5. The pleading in paragraph 17 and following of what appears to be the tort of negligence, and the failure to make that clear, and the risk that would be alleged as referred to as being an important requirement in Ms Coventry’s written submissions;

6. The need to properly plead s 18 of the Australian Consumer Law, and the conduct which is alleged to have occurred, and how a breach of that conduct amounted to a breach of s 18;

7. A lack of clarity in relation to the pleading of guarantees implied into some contracts under the Australian Consumer Law; and

8. The assertion that the claim was a liquidated claim or, alternatively, an unliquidated claim where, as indicated in Ms Coventry’s submissions, the claim on its face appears clearly to be an unliquidated claim.

5. Following those interactions with the Court, Mr Kikkert sought leave for the plaintiff to file a further version of the Amended Statement of Claim.

6. Ms Coventry took a different position to that in her written submissions and accepted, and did not oppose, the plaintiff being given a further opportunity to propose an Amended Statement of Claim.

7. There may come a time where a party has been given sufficient opportunity to file a proposed pleading, and a view can be formed that the Court would not have confidence in a satisfactory pleading ever being provided: see the comments of Chen J in Lin v State of New South Wales [2024] NSWSC 653 at [48]-[54]. However, I do not think that the matter has arrived at that position yet.

8. In my view, exercising the discretion which I have, the plaintiff should be given a further opportunity to propound an additional satisfactory pleading.

9. For those reasons, I make the following orders:

“In relation to the Notice of Motion filed 19 December 2024:

(1)  The Notice of Motion is dismissed.”

[His Honour then heard submissions on costs and ancillary timetabling matters.]

10. An issue has arisen in relation to the costs of the Notice of Motion. It was quite clear, on the correspondence, that the defendants did not consent to the amended pleading. The submissions of Ms Coventry make clear that the second defendant took the position of opposing the leave being sought.

11. The plaintiff no longer pressed for the propounded pleading. Accordingly, the plaintiff failed in her Notice of Motion and I see no reason why the usual order should not be made. Exercising the discretion which I have under s 98 of the Civil Procedure Act 2005 (NSW), the additional orders I make are:

(2)  The plaintiff is to pay the second defendant’s costs of the Notice of Motion as agreed or assessed.

(3)  The plaintiff is to serve a further version of the Statement of Claim on the defendant’s solicitors by 5pm on 7 March 2025.

(4)  In the event consent is not granted to file the proposed Amended Statement of Claim, the plaintiff is to file and serve a Notice of Motion seeking leave by 26 March 2025, returnable for directions and, if appropriate, hearing on 3 April 2025.

(5)  The matter is listed for directions before the List Judge on 3 April 2025 at 9.30am.

(6)  Liberty to apply on two business days’ notice.

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Decision last updated: 04 March 2025