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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
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.