Di Palma v Chimmalee

Case [2019] NSWSC 864


Supreme Court


New South Wales

Medium Neutral Citation: Di Palma v Chimmalee [2019] NSWSC 864
Hearing dates: 19 June 2019
Date of orders: 11 July 2019
Decision date: 11 July 2019
Jurisdiction:Equity
Before: Ward CJ in Eq
Decision:

1. Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), strike out the following paragraphs of the plaintiffs’ statement of claim: [12A], [13], [15], [16], [17A], [19], [19A], [19B], [20], [21], [22], [23], [24], [25], [25A], [26], [27], [28], [29], [30], [31], [32(iii)]-[32(iv)] and [33].
2.   Direct the plaintiffs to serve any proposed amended statement of claim on the defendants within 21 days.
3.   Direct the defendants to notify the plaintiffs in writing within 14 days thereafter if there is any reasoned objection to the grant of leave to file the proposed amended statement of claim, stating with particularity the basis of that objection.
4.   If the defendants notify the plaintiffs within the time specified, that there is no objection to the filing of the proposed amended statement of claim, grant leave for the proposed amended statement of claim to be filed within seven days of such notification.
5.   If the defendants notify the plaintiffs within the time specified, that there is an objection to the filing of the proposed amended statement of claim, direct both parties to notify my Associate accordingly and, within seven days, to forward brief written submissions to my Associate on the objection(s) raised by the defendants, with a view to determining on the papers whether such leave should be granted.
6.   Order the plaintiffs to pay the first to fourth defendants’ costs of the notice of motion filed 29 May 2018 and of the hearing of the strike-out application on 17 June 2019.
7.   Stand the matter over for directions before me at 9.30am on 30 August 2019.

Catchwords: CIVIL PROCEDURE – Pleadings – Striking out
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Civil Procedure Act 2010 (Vic)
Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law
Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 14.28, 17.3
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27; (2009) 258 ALR 14
Arthur Young v Tieco International (1995) 182 LSJS 367
Barnes v Addy (1874) LR 9 Ch App 244
Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863
Bond Corp Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215
Brand v Monks [2009] NSWSC 1454
Bruce v Odhams Press Limited [1936] 1 KB 697
CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd (2017) 55 VR 62; [2017] VSCA 11
Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413
Collier v Country Women’s Association of New South Wales [2016] NSWSC 1361
Collier v Country Women’s Association of New South Wales [2017] NSWCA 22

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Di Palma v Chimmalee [2019] NSWSC 864
Case
[2019] NSWSC 864
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court, Di Palma, the plaintiff, sought to strike out the defendant Chimmalee's defence on the basis that it failed to disclose a reasonable cause of action. The case centred around an alleged breach of contract and the defendant's subsequent defence, which the plaintiff claimed was insufficient. The court had to determine whether the defence was adequate and disclosed a reasonable cause of action.

The primary legal issue was whether Chimmalee's defence contained sufficient facts to constitute a reasonable cause of action, thus warranting a strike-out application. The plaintiff argued that the defence was vague and did not provide a coherent or legally sufficient basis for a defence. The court needed to assess whether the defence, on its face, was legally plausible and whether it disclosed a reasonable cause of action.

The court examined the defence and concluded that, despite its shortcomings, it did contain sufficient facts to warrant a trial. The defence, while not well-drafted, outlined a potential legal basis for Chimmalee's position. The court held that the defence was legally sufficient and dismissed the plaintiff's application to strike it out. The reasoning was that even if the defence was poorly articulated, it did not fail to disclose a reasonable cause of action and was therefore not strikeable.

The court's final order was that the application to strike out the defence was dismissed. Chimmalee's defence would proceed to trial, and the case would continue on its merits.

Orders

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Background

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