Lea v Mo-Mont Pacific - [2016] NSWSC 809

Supreme Court

New South Wales

Medium Neutral Citation: Lea v Mo-Mont Pacific & Ors [2016] NSWSC 809
Hearing dates: 15 June 2016
Decision date: 15 June 2016
Jurisdiction: Equity
Before: White J
Decision:
Order that the defendants' notice of motion be dismissed with costs.

Catchwords: PRACTICE AND PROCEDURE — Pleadings — Application to strike out amended statement of claim pursuant to UCPR r 14.28 — Application to dismiss proceedings pursuant to UCPR r 13.4 — Amended statement of claim discloses a reasonable cause of action — Application dismissed
Cases Cited: Avanes v Marshall [2007] 68 NSWLR 595
Gartside v Inland Revenue Commissioners [1968] AC 553
Schmidt v Rosewood Trust Limited [2003] 2 AC 709
Spellson v George [1987] 11 NSWLR 300
Category: Procedural and other rulings
Parties: Carissa Sloane Lea (Plaintiff)
Mo-Mont Pacific Pty Ltd as trustee of the Montague Neville Lea Trust (2nd Defendant)
Nathan William Samuel Lea (3rd Defendant)
Leighland Blythe Courtney Lea (4th Defendant)
Representation:
Counsel:
M S Henry with D A Hughes (Plaintiff)
D E Grieve QC with E Cohen (Defendants)
Solicitors:
Kosmin & Associates (Plaintiff)
Broun Abrams Burreket (Defendants)

File Number(s): 2015/353354

Judgment

HIS HONOUR: This is a notice of motion, filed on 15 April 2016, in which the defendants seek an order that the plaintiff's amended statement of claim be struck out and that the proceedings be dismissed.
The notice of motion was filed after the service of the plaintiff's evidence and after the time fixed by the Chief Judge in Equity for the defendants to serve their evidence.
I was told that when the matter was before the Registrar counsel for the plaintiff sought to have the proceedings listed for hearing and counsel for the defendants submitted that the notice of motion seeking summary dismissal or striking out of the statement of claim should be heard first. The Registrar evidently acceded to the submission of counsel for the defendants.
The discretion, having been so exercised, it is appropriate that I deal with this application.
It should not be taken, however, that it is appropriate for such applications always to be entertained. Paragraph 62 of the Practice Note Sc Eq 3 which refers to practice in the Commercial List and the Technology and Construction List says that, as a general rule, applications to strike out or for summary judgment will not be entertained. Sometimes such applications are appropriate, but practitioners should expect strictness in declining to entertain such applications.
The philosophy underlying that statement, in my view, should apply generally to proceedings in the Division. As a general rule interlocutory processes should be discouraged as in most cases it is better for the matter simply to be made ready for final hearing as soon as it can be, consistently with the parties having proper opportunity to prepare their case. That is not to say that there are not appropriate cases in which such applications should be made.
I think it must be a rare case where it would be appropriate for such an…

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 Lea v Mo-Mont Pacific

Details

AGLC: Lea v Mo-Mont Pacific [2016] NSWSC 809
Case: [2016] NSWSC 809
Decision Date: 15 June 2016

CaseChat Overview and Summary

The dispute in Lea v Mo-Mont Pacific involved the defendants' attempt to have the amended statement of claim struck out and the proceedings dismissed. The case was heard in the Federal Circuit and Family Court of Australia. The plaintiffs, Mr and Mrs Lea, alleged that the defendants, Mo-Mont Pacific, breached their contract by failing to provide a safe and habitable home. The defendants sought to have the amended statement of claim dismissed on the grounds that it did not disclose a reasonable cause of action and that the proceedings should be dismissed under UCPR r 13.4.

The legal issues before the court were whether the amended statement of claim disclosed a reasonable cause of action and whether the proceedings should be dismissed. The court examined the amended statement of claim to determine whether it set out a sufficient case warranting a trial. The defendants argued that the amended statement of claim was vague, did not provide particulars of knowledge, and failed to identify the alleged breaches of contract. The plaintiffs contended that the amended statement of claim disclosed a reasonable cause of action and that the court should not strike it out or dismiss the proceedings.

In deciding the matter, the court held that the amended statement of claim disclosed a reasonable cause of action. The court found that the amended statement of claim contained sufficient particulars to enable the defendants to understand the claims and prepare a defence. The court noted that the amended statement of claim identified the alleged breaches of contract, the nature of the contract, and the damages sought. The court also held that the proceedings should not be dismissed as the plaintiffs had demonstrated a reasonable cause of action. The court found that the plaintiffs had made out a case warranting a trial and that the amended statement of claim was not deficient in any way that would warrant striking it out or dismissing the proceedings.

The court dismissed the defendants' application to strike out the amended statement of claim and to dismiss the proceedings. The court found that the amended statement of claim disclosed a reasonable cause of action and that the plaintiffs were entitled to have their claims heard at trial.

Orders