Joyce v Palassis [No 5] - [2009] WASC 6

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: JOYCE -v- PALASSIS [No 5] [2009] WASC 6

CORAM: LE MIERE J

HEARD: 8 DECEMBER 2008

DELIVERED : 23 JANUARY 2009

FILE NO/S: CIV 2134 of 1998

BETWEEN: NEIL KEVIN JOYCE
KEITH GRAEME LINGARD
NICK CHRISTOU
First Plaintiffs
STANTON PARTNERS
Second Plaintiff
AND
STAN MICHAEL PALASSIS
First Defendant
CHATTOCK HOLDINGS PTY LTD (ACN 009 357 895)
Second Defendant

Catchwords:

Civil practice and procedure - Pleadings - Strike out application - Application to strike out parts of the statement of claim - Application brought outside of time - Whether leave should be granted to bring application out of time - Whether the statement of claim discloses no reasonable cause of action that the first defendant breached a fiduciary duty - Turns on own facts - Rules of the Supreme Court 1971 (WA) O 20 r 19

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 19

Result:

Leave to bring strike out application out of time granted
Strike out application granted

Category: B

Representation:

Counsel:

First Plaintiffs               :     Mr T J Carmady
Second Plaintiff            :     Mr T J Carmady
First Defendant             :     Mr D H Solomon & Mr C S Williams
Second Defendant         :     Mr D H Solomon & Mr C S Williams

Solicitors:

First Plaintiffs               :     Williams & Hughes
Second Plaintiff            :     Williams & Hughes
First Defendant             :     Solomon Brothers
Second Defendant         :     Solomon Brothers

Case(s) referred to in judgment(s):

Barnes v Addy (1874) LR 9 Ch App 244
Cubillo v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455
Joyce v Palassis [2008] WASCA 151
Joyce v Palassis [No 3] [2007] WASC 214
Joyce v Palassis [No 4] [2008] WASC 45
Revinder Rohini Pty Ltd v Krizaic [1991] FCA 318; (1991) 30 FCR 300

LE MIERE J: The defendants have applied for orders dismissing the action against the first defendant (Mr Palassis) and striking out [6], [7], [10], [11], [15], [18.1] and [18.3] of the statement of claim. The application is made under O 20 r 19 of the Rules of the Supreme Court 1971 (WA). The application is brought outside of the time within which it is required to be made by O 20 r 19(3). The defendants seek an extension of time for making the application. The plaintiffs oppose the application and oppose an extension of time for making the application.

Time for application

Order 20 r 19(3) requires that an application to strike out the whole or part of a pleading must be made within 21 days of its service. The purpose of the rule is to ensure that strike out applications are brought promptly so that they may be disposed of quickly and the action continue without further delays dealing with pleading disputes.
Where an application to strike out a pleading is not made within 21 days of its service the court has an inherent power to extend the time. Power is also conferred on the court to extend time by…

Grounds of appeal

[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.

Continue reading Joyce v Palassis [No 5]

Details

AGLC: Joyce v Palassis [No 5] [2009] WASC 6
Case: [2009] WASC 6
Decision Date: 23 JANUARY 2009

CaseChat Overview and Summary

The parties in this case were the applicant, who was the executor of the estate of the deceased, and the respondent, who was the first defendant. The nature of the dispute was a strike-out application made by the applicant against the respondent, seeking to have certain parts of the statement of claim struck out. The court in which the case was heard was the Supreme Court of Western Australia. The applicant argued that the respondent's statement of claim should be struck out as it disclosed no reasonable cause of action and that the application should be brought outside of time.

The legal issues the court was required to decide were whether the application to strike out could be brought outside of time and whether the statement of claim disclosed no reasonable cause of action. The court considered the relevant rules and case law and determined that the application was indeed brought outside of time. However, the court also found that the statement of claim disclosed no reasonable cause of action that the first defendant breached a fiduciary duty. The court held that the statement of claim turned on its own facts and did not provide sufficient detail to establish a breach of fiduciary duty.

The court's reasoning and outcome were based on the application of the relevant rules and case law. The court held that the application to strike out was indeed brought outside of time, but that this did not necessarily mean that the application would be dismissed. The court found that the statement of claim did not provide sufficient detail to establish a breach of fiduciary duty, and that the respondent had not provided any evidence to support their claim. The court held that the statement of claim turned on its own facts and did not provide a reasonable cause of action. Therefore, the court granted the application to strike out parts of the statement of claim.

The final orders of the court were that the application to strike out was granted, and certain parts of the statement of claim were struck out. The court held that the respondent had failed to establish a reasonable cause of action and that the statement of claim did not provide sufficient detail to support their claim. The court found that the respondent had not provided any evidence to support their claim and that the statement of claim turned on its own facts. Therefore, the court granted the application to strike out parts of the statement of claim, and the respondent was required to amend their statement of claim to provide sufficient detail to establish a reasonable cause of action.

Orders