KOBAYSHI v PELCZAR
[2012] WASC 42
•16 FEBRUARY 2012
KOBAYSHI -v- PELCZAR [2012] WASC 42
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 42 | |
| Case No: | CIV:2269/2009 | 17 JANUARY 2012 | |
| Coram: | ACTING MASTER CHAPMAN | 16/02/12 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Statement of claim struck out Leave to amend granted Judgment not entered | ||
| B | |||
| PDF Version |
| Parties: | SHIZUYO KOBAYSHI OTTO PELCZAR OPEX PTY LTD |
Catchwords: | Practice and procedure Amendment of statement of claim Summary judgment pursuant to O 14 r 16 Rules of the Supreme Court 1971 (WA) Statement of claim be struck out |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
OTTO PELCZAR
First Defendant
OPEX PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Amendment of statement of claim - Summary judgment pursuant to O 14 r 16 Rules of the Supreme Court 1971 (WA) - Statement of claim be struck out
Legislation:
Nil
Result:
Statement of claim struck out
Leave to amend granted
Judgment not entered
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr M R Hall
First Defendant : Mr A J Goldfinch
Second Defendant : Mr A J Goldfinch
Solicitors:
Plaintiff : Hall & Hall Lawyers
First Defendant : Stables Scott
Second Defendant : Stables Scott
Case(s) referred to in judgment(s):
Nil
(Page 3)
- ACTING MASTER CHAPMAN:
Applications
1 On 13 October 2011 the plaintiff filed an application to amend the statement of claim in accordance with a minute attached. On 17 October 2011 the defendants filed a chamber summons seeking leave to bring the application and that judgment be entered for the first and second defendants or alternatively the statement of claim be struck out as it discloses no cause of action against the first defendant.
Affidavit of Malcolm Russell Hall sworn 9 November 2011
2 Counsel for the defendants raised a number of objections in relation to this affidavit. Paragraph 4 of the affidavit reads:
Save as otherwise indicated, the facts hereinafter deposed to are, from my perusal of various relevant documents, true of my knowledge, information and belief.
3 Whilst affidavits filed in applications such as this may contain statements of information or belief they must contain a statement of the source of the information and the grounds for the belief. Further if it is clear that direct primary evidence is readily available to a party it should be placed before the court rather than information and belief.
4 As Mr Hall has perused various documents and there being no evidence to the contrary it would appear those documents are readily available and should have been properly identified and annexed to his affidavit. In my view the objections raised by counsel for the defendants are valid and the paragraphs he objected to should be struck out.
The plaintiff's application to amend the statement of claim and the defendants' application to strike out the statement of claim
5 Before the question of amendment is considered I think it important to examine the statement of claim in its present form noting that leave will not be granted if the pleading ought nonetheless be struck out.
6 It is my view the statement of claim as it stands is defective and the proposed amendment will not cure those defects. In that regard I agree with the comment of counsel for the defendants, 'the second defendant has been sort of tacked on'. Apart from referring to the second defendant in the prayer for relief the second defendant is not mentioned in the statement of claim other than in the heading and then it does not seem to be fully described. The statement of claim should contain material facts
(Page 4)
- as to the corporate status of the second defendant and those material facts which the plaintiff relies upon to seek the declaration referred to in the prayer for relief.
7 Further, I am of the view that the unnumbered paragraph in the statement of claim is inadequately pleaded. In the circumstances of this matter the simple plea that the sum referred to was withdrawn from the plaintiff's cash management account without more is inadequate.
8 For the above reasons I consider the statement of claim should be struck out and therefore it would be inappropriate to allow the amendment as sought.
Application by the defendants for judgment
9 Having reached the conclusion the statement of claim should be struck out should the plaintiff be given leave to re-plead or should judgment be entered on the basis agitated by the defendants? In this regard I am at somewhat of a dilemma as it is not clear, on what is before me, whether or not the plaintiff is in a position to properly plead a claim. At par 17 of the plaintiff's written submissions the following is submitted:
By reason of the First Defendant's management of the Plaintiff's financial affairs, she has been left with a paucity of information and documentation in relation to her financial affairs, a paucity which has prevented her from setting out any further material facts which might further explain the basis of her claim.
10 There was of course pre-action procedures which may have been open to the plaintiff if by a lack of information she did not have enough information to enable her to make a decision as to whether to commence or take proceedings.
11 At the end of the day I would not wish to deny the plaintiff an opportunity to properly plead her case. Once a properly pleaded statement of claim is on foot some of the other issues raised by the defendants can be further assessed. In the circumstances of this matter I consider that it is just to permit the plaintiff to re-plead her case.
12 I would therefore give the plaintiff leave to re-plead her case and the defendants leave to make any consequential amendments to their pleadings. In the circumstances I would decline to enter judgment for the defendants either on the claim or the counterclaim. If a claim is properly pleaded it maybe the circumstances are such that they ought be investigated.
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