SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McKay v Findex Group Limited |
Citation: | [2021] ACTSC 191 |
Hearing Date: | 17 February, 15 November 2021 |
DecisionDate: | 27 July 2022 |
Before: | McWilliam AsJ |
Decision: | (1) Paragraphs [5], [6] and [7] of the Statement of Claim filed 23 March 2020 are struck out. (2) The plaintiff is to file an Amended Statement of Claim on or before 31 August 2022. (3) The proceeding is to travel with SC 172 of 2020 and the matters are listed for directions as to the further case management of the proceedings on Monday 5 September 2022 at 9.30am. (4) The application is otherwise dismissed. (5) The plaintiff is to pay 80% of the defendants’ costs of the application, with such costs not to be recoverable until the conclusion of the substantive proceeding. |
Catchwords: | PRACTICE AND PROCEDURE – summary dismissal – whether a good defence disclosed – whether doctrine of Anshun estoppel applies – whether waiver operates within the adjudicative process by the deliberate act of a party in previous proceedings – where counsel communicated to a court that the plaintiff was not going to rely upon the point now raised – whether proceedings otherwise an abuse of process where same arguments are brought in separate proceedings seeking to enforce an undertaking given as to damages. PRACTICE AND PROCEDURE – strike out – whether proceedings barred by s 16B of the Limitation Act 1985 (ACT) – whether plaintiff failed to comply with s 51 of the Civil Law (Wrongs) Act 2002 (ACT) – whether damages allegation properly pleaded |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 51 Commonwealth Constitution ss s 51, 118 Uniform Civil Procedure Rules 2005 (NSW) rr 6.1, 10.20, 10.19 |
Cases Cited: | A Goninan & Co v Atlas Steels [2003] NSWSC 956 ACCC v Jutsen (No 3) [2011] FCA 1352; 206 FCR 264 |
Keep reading for free
Create a free CaseChat account to read McKay v Findex Group Limited and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] ACTSC 191
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff had not properly pleaded the damages, as required by section 51 of the Civil Law (Wrongs) Act 2002 (ACT), and that paragraphs [5], [6] and [7] of the Statement of Claim were accordingly struck out. The court also found that the defendants had a good defence, as the plaintiff had not raised certain arguments in the previous proceedings, and that the doctrine of Anshun estoppel applied. The court further found that the plaintiff's proceedings did not constitute an abuse of process, as the arguments raised were different from those in the previous proceedings. However, the court found that the plaintiff's claim was barred by limitation under section 16B of the Limitation Act 1985 (ACT), but that this did not apply to the breach of contract claim.
The court ordered that the plaintiff was to file an Amended Statement of Claim on or before 31 August 2022, and that the proceeding was to travel with SC 172 of 2020. The court further ordered that the application was otherwise dismissed, and that the plaintiff was to pay 80% of the defendants' costs of the application, with such costs not to be recoverable until the conclusion of the substantive proceeding. The matters were listed for directions as to the further case management of the proceedings on Monday 5 September 2022 at 9.30am.
Orders
Orders of the court
(1) Paragraphs [5], [6] and [7] of the Statement of Claim filed 23 March 2020 are struck out.
(2) The plaintiff is to file an Amended Statement of Claim on or before 31 August 2022.
(3) The proceeding is to travel with SC 172 of 2020 and the matters are listed for directions as to the further case management of the proceedings on Monday 5 September 2022 at 9.30am.
(4) The application is otherwise dismissed.
(5) The plaintiff is to pay 80% of the defendants’ costs of the application, with such costs not to be recoverable until the conclusion of the substantive proceeding.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.