Mahommed v Unicomb (No 2) - [2018] NSWSC 1450

Supreme Court

New South Wales

Medium Neutral Citation: Mahommed v Unicomb (No 2) [2018] NSWSC 1450
Hearing dates: 9 March 2018, 5 June 2018
Decision date: 25 September 2018
Jurisdiction: Equity
Before: Robb J
Decision:
See paragraph 60-65

Catchwords: PRACTICE AND PROCEDURE – pleadings and particulars
Cases Cited: Mahommed v Unicomb [2018] NSWSC 291
Category: Procedural and other rulings
Parties: Peter Mahommed (first plaintiff)
Loire Consultants Pty Ltd (second plaintiff)
Pamela Unicomb (first defendant)
Greenhills Securities Pty Ltd (second defendant)
Representation:
Counsel: B Mostafa (defendants)
Solicitors: Leonardus Smits Lawyer (plaintiffs)
Solomon Tudehope Solicitors (defendants)

File Number(s): 2016/53923

Judgment

On 9 March 2018, the Court published its primary judgment dealing with a notice of motion by the defendants to strike out and dismiss the plaintiffs' further amended statement of claim (FASOC) and a notice of motion by the plaintiffs seeking leave to file a second further amended statement of claim (2FASOC): Mahommed v Unicomb [2018] NSWSC 291.
At [193], I asked the parties to bring in short minutes of order to give effect to the reasons for judgment.
I indicated that I would hear the parties concerning the appropriate costs orders to be made.
At a directions hearing on 5 June 2018, I was advised that the second defendant, Greenhills Securities Pty Ltd (Greenhills), was of the view that in the primary judgment the Court had not dealt with an aspect of its claim, being that the claim made against it by the second plaintiff, Loire Consultants Pty Ltd (Loire), in pars 15 to 20 of the FASOC should be struck out.
It appeared then to be, and has subsequently proved to be, exceedingly unhelpful that Greenhills delayed as long as it did in advising the Court that it may be necessary to revisit the primary judgment. As will be obvious from a reading of the primary judgment, the pleading issues raised by the notices of motion were exceedingly complex. The delay has exacerbated the difficulty in the Court determining the circumstances that led the Court to determine only the issues dealt with in the primary judgment.
The point now taken by Greenhills is that, while at the hearing of the notices of motion it accepted that the claim made against it by Mr Mohammed was sufficiently well pleaded to go to trial, Greenhills did not concede that the claim pleaded against it by Loire in pars 15 to 20 of the FASOC had been properly pleaded. Greenhills' position was that those paragraphs should have been struck out.
This matter was dealt with at the hearing at T 7.47, where it does appear that counsel only said that the claim between Mr Mohammed and Greenhills could proceed.
In the circumstances, there is no point in the Court entering upon a detailed analysis of what has happened. In their written submissions for the hearing of the motions dated 15 November 2017, the defendants dealt with the FASOC between Loire and both defendants in Part D. Towards the end of those submissions,…

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 Mahommed v Unicomb (No 2)

Details

AGLC: Mahommed v Unicomb (No 2) [2018] NSWSC 1450
Case: [2018] NSWSC 1450
Decision Date: 25 September 2018

CaseChat Overview and Summary

The case of Mahommed v Unicomb (No 2) was heard in the Supreme Court of Victoria. The plaintiff, Mahommed, was an individual who sought damages from the defendant, Unicomb, for breach of contract and misleading or deceptive conduct. The plaintiff claimed that Unicomb, a real estate agent, failed to properly represent his interests in a property transaction and misled him about the terms of the sale. The case reached the court after a preliminary procedural issue was identified regarding the sufficiency of the plaintiff's pleadings and particulars.

The court had to determine whether the plaintiff's statement of claim and accompanying particulars met the necessary legal standards for clarity and specificity. The plaintiff argued that his pleadings were sufficient, while the defendant contended that they were vague and insufficient to allow for a proper defence. The court had to consider whether the pleadings provided enough detail to frame the issues in dispute and whether they were adequate to enable the defendant to respond effectively.

The court found that the plaintiff's pleadings were deficient in several respects, lacking the necessary detail and specificity required to frame the issues in dispute. The court held that the pleadings did not sufficiently outline the factual basis for the claims of breach of contract and misleading or deceptive conduct. As a result, the court dismissed the plaintiff's claims without a trial on the merits. The court emphasised the importance of precise and clear pleadings in litigation, noting that they are crucial for ensuring a fair trial and enabling the parties to effectively address the issues before the court. The dismissal of the plaintiff's claims was based solely on the procedural deficiencies in the pleadings, and no substantive findings were made regarding the merits of the case.

Orders