MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Heaven Builders Pty Ltd v Moustafa |
Citation: | [2023] ACTMC 27 |
Hearing Dates: | 14 June 2023 |
Decision Date: | 4 August 2023 |
Before: | Magistrate Temby |
Decision: | See [165]. |
Catchwords: | CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – strike out application – whether Third-Party statement of claim discloses reasonable cause of action – where pleading fails to comply with the procedural rules to such an extent that it fails to expose the case the party intends to run – whether leave to replead should be given – where certain causes of action sufficiently disclosed to warrant granting of leave to replead |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 124A, 124B Construction Occupations (Licensing) Act 2004 (ACT) ss 28, 31 Construction Occupations (Licensing) Regulation 2004 (ACT) r 19 Court Procedures Rules 2006 (ACT) rr 20, 302, 303, 406, 407, 430, 432, 425, 1147 |
Cases Cited: | Clarence City Council v Commonwealth of Australia [2020] FCAFC 134; (2020) 280 FCR 265 Findex Group Limited v McKay [2022] ACTSC 192 Georges v Georges [2022] NSWDC 558 M1 v R1 & Ors [2022] NSWDC 409 Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 |
Parties: | Heaven Builders Pty Ltd ( Plaintiff) Nour Moustafa ( First Defendant) Marwa Moustafa ( Second Defendant) Khalil Khattak ( First Third-Party) Muhammad Naizi ( Second Third-Party) Mice Kljusuric ( Third Third-Party) Syeda Gul ( Fourth Third-Party) |
Representation: | Counsel B Buckland ( Plaintiff, Third-Parties) |
| Solicitors Bradley Allen Love Lawyers ( Plaintiff, Third-Parties) Self-Represented ( First Defendant) Self-Represented ( Second Defendant) | |
File Number: | CS 182 of 2022 |
MAGISTRATE TEMBY:
Table of Contents
Introduction
Summary
Litigation context for Third-Party claims
Third-Party claims
First Third-Party statement of claim
Second Third-Party claim
Third Third-Party claim
Fourth Third-Party claim
Summary judgment / Strike out application
Position of the Third-Parties
Position of the Defendants
Relevant Rules
Third-Party claims
Pleadings
Rules governing summary judgment / strike out applications
Principles applicable to the determination of summary judgment / strike out applications
Consideration
Third-Party notices
First and Second Third-Party claims – alleged breaches of the Second Contract
First Third-Party claim – other possible claims
Disposition of application in relation to the First Third-Party claim
Second Third-Party claim – other possible claims
Disposition of application in relation to the Second Third-Party claim
Third Third-Party claim
Fourth Third-Party claim
Costs
Orders
Introduction
1․The proceedings concern a dispute between the Plaintiff and the Defendants with respect to the Plaintiff’s construction of a residential dwelling for the Defendants. The Defendants filed a counterclaim against the Plaintiff and also filed four Third-Party claims. This decision concerns a summary dismissal application made by the four Third-Parties.
2․Specifically, by an Application in Proceeding filed on 18 May 2023, Khalil Khattak (the First Third-Party), Muhammad Niazi (the Second Third-Party), Mice Kljusuric (the Third Third-Party) and Syeda Gul (the Fourth Third-Party), seek summary judgment in relation to third-party claims that have been brought against…
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- AGLC
- Heaven Builders Pty Ltd v Moustafa [2023] ACTMC 27
- Case
- [2023] ACTMC 27
- Decision Date
CaseChat Overview and Summary
The court examined whether Moustafa's pleading sufficiently disclosed a cause of action against the third party and if it complied with the procedural requirements to the extent necessary to expose the intended case. The court held that while the pleading had deficiencies, certain causes of action were sufficiently disclosed. The court concluded that Moustafa should be granted leave to amend the pleading to address the deficiencies, ensuring that it complied with procedural rules and properly exposed the intended case. This decision balanced the need for procedural fairness with the requirements of a just and efficient legal process.
The court ordered that Moustafa be granted leave to amend the Third-Party Statement of Claim within a specified timeframe, with the caveat that any further non-compliance could result in the application to strike out being re-considered. This ruling allowed Moustafa to correct the deficiencies in the pleading, ensuring that the case could proceed in a manner consistent with procedural fairness and the principles of justice.
Orders
Orders of the court
See [165].
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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