Cornerstone Investment Aust Pty Ltd (In Liquidation) v Tom Seymour

[2022] NSWSC 281

Supreme Court

New South Wales

Medium Neutral Citation:

Cornerstone Investment Aust Pty Ltd (In Liquidation) v Tom Seymour [2022] NSWSC 281

Hearing dates:

2 March 2022

Decision date:

02 March 2022

Jurisdiction:

Equity - Commercial List

Before:

Hammerschlag J

Decision:

Motion filed 18 December 2021 to strike out plaintiff’s Amended Commercial List Statement filed 10 December 2021 is dismissed, costs to be in the cause. Provision made for the defendant to request further particulars.

Catchwords:

Practice and procedure – Practice Note SC Eq 3 para 62 – Commercial List Statement – Application to strike out where Commercial List Statement is deficient but not to the level where it is plain that it should be struck out

Legislation Cited:

Practice Note SC Eq 3

Cases Cited:

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357

Swiss Re International SE v David Simpson [2018] 354 ALR 607

Category:

Procedural rulings

Parties:

Cornerstone Investment Aust Pty Ltd (In Liquidation) - Plaintiff
Tom Seymour - Defendant

Representation:

Counsel:
IM Jackman SC with Mr AR Zahra SC and Mr JR Anderson - Plaintiff
P Brereton SC with H Lenigas - Defendant

Solicitors:
Bridges Lawyers - Plaintiff
Ashurst - Defendant

File Number(s):

2021/150771

JUDGMENT

1. HIS HONOUR: Para 62 of Practice Note SC Eq 3 provides that:

As a general rule applications to strike out or for summary judgment will not be entertained. Sometimes applications are appropriate, but Practitioners should expect strictness in declining to entertain such applications.

2. The plain object of the Practice Note is to discourage such applications except in the clearest of cases. It is inimical to the efficient operation of the Commercial List (where strict pleading is not required) for the Court to be detained by such applications, other than in those type of cases.

3. Before the Court is an application to strike out the plaintiff’s Amended Commercial List Statement, filed on 10 December 2021. An earlier emanation of the List Statement was struck out by Williams J, with leave to replead, on 16 November 2021, after the plaintiff conceded that it had deficiencies.

4. The new List Statement has significant difficulties in structure and articulation, some but not all of which were the subject of debate during the hearing of the application. It is not necessary to repeat them here, suffice it to say that the plaintiff brings claims in contract and tort but has not opted to plead these causes of action in the way in which this is traditionally and appropriately done. The List Statement contains numerous allegations which are not properly part or any element of a cause of action. One of the defendant’s complaints, which is not without substance, is that the plaintiff has not adequately particularised allegations of knowledge of various things said to have been held by the plaintiff.

5. Whilst its inadequacies do not rise to the level of making it a plain case where it should be struck out, the instrument is, in my view, likely to cause difficulties, in particular for the plaintiff, especially when this matter comes to trial. In a case such as this, it is incumbent on the plaintiff to articulate its case with precision: Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at [5]-[7]; Swiss Re International SE v David Simpson [2018] 354 ALR 607, 611 at [31]-[35].

6. I invited the plaintiff to consider repleading but perceived some reluctance on its part to accept. Nevertheless, I propose to afford it that opportunity whether it wishes to take it up or not. Also, despite it not being the general practice in this List, but given the nature of the complaints made by the defendant and the debate which took place, I propose to permit the defendant to request, and to require the plaintiff to provide, further particulars.

7. Given the mixed success of the parties, the application will be dismissed but the costs will be costs in the cause.

8. I note that I did give the plaintiff leave to make a minor amendment to para 94(c).

decision

9. The court makes the following orders:

1. The motion to strike out filed 18 February 2022 is dismissed, costs to be in the cause.

2. By 18 March 2022 the plaintiff is to serve on the defendant any proposed further Amended Commercial List Statement.

3. By 1 April 2022 the defendant is to notify the plaintiff whether it consents to the amendment. If it does, the amendment may be filed forthwith. If it does not, it must provide reasons why.

4. By 15 April 2022 the defendant is to request any further particulars of the List Statement, in the form it then is, and the plaintiff is to respond to the request no later than 14 days after receiving it.

5. By 13 May 2022 the defendant is to file and serve its Commercial List Response.

6. The proceedings are stood over to 27 May 2022 for directions.

7. Liberty to apply on three days’ notice.

10. Liberty to apply may be utilised for the purposes of bringing any application for leave to amend consequent upon any refusal to consent to the subject of order (3).

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Decision last updated: 16 March 2022