(1) Dismiss the plaintiff’s application for leave to amend the statement of claim. (2) Refuse leave to re-plead. (3) Dismiss the proceedings with costs. (4) Dismiss the respective motions as to service with no order as to costs.
Catchwords:
CIVIL PROCEDURE – Pleadings – Applications for summary dismissal pursuant to r 13.4 and/or to strike out parts of the pleadings pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – Whether leave to replead should be granted
CIVIL PROCEDURE – Service – Application for substituted service pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW)
[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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Details
AGLC
Jacobsen v Jacobsen [2017] NSWSC 1590
Case
[2017] NSWSC 1590
Decision Date
CaseChat Overview and Summary
In the Supreme Court of New South Wales, the matter of Jacobsen v Jacobsen was before the court. The dispute between the parties involved an application for summary dismissal and a request for substituted service of the originating process. The court had to determine whether to grant the application for summary dismissal, the application to strike out certain parts of the pleadings, and the application for substituted service. The issues before the court included the adequacy of the pleadings and whether they disclosed a reasonable cause of action, the necessity for leave to replead, and the appropriateness of substituted service in the circumstances.
The court examined the pleadings and considered whether they disclosed a reasonable cause of action. It assessed whether the application for summary dismissal should be granted and whether the pleadings should be struck out. The court also reviewed the application for substituted service, considering whether the conditions for such service were met under the Uniform Civil Procedure Rules 2005 (NSW). The court's reasoning was guided by the principles of procedural fairness and the necessity to ensure that the proceedings were conducted in a manner that was just and efficient.
Ultimately, the court decided to dismiss the application for summary dismissal, allowing the defendant leave to replead. The court held that the plaintiff's pleadings did not adequately disclose a reasonable cause of action and required further clarification. The application to strike out parts of the pleadings was also dismissed, as the court found that the defendant's response was not defective to the extent that it warranted striking out. Regarding the application for substituted service, the court granted leave for substituted service to be effected by leaving the originating process at the defendant's last known address. This decision was based on the belief that it was reasonable and necessary to ensure the defendant was properly served.
The court's final orders included dismissing the application for summary dismissal, granting leave to the defendant to replead, dismissing the application to strike out parts of the pleadings, and granting leave for substituted service by leaving the originating process at the defendant's last known address.