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McMillan v Coolah Home Base (No 3)

McMillan v Coolah Home Base (No 3)

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Case Copied 30 September 2020 72 min read

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Supreme Court

New South Wales

Medium Neutral Citation: McMillan v Coolah Home Base (No 3) [2020] NSWSC 1325
Hearing dates: 14 September 2020
Date of orders: 30 September 2020
Decision date: 30 September 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Give leave to the plaintiffs to file the proposed further amended statement of claim against the fifth and sixth defendants (with the exception of the paragraphs [A43] – [A48] and references thereto elsewhere in the pleading, but including those paragraphs referred to at [104] of these reasons) subject to the further re-pleading of the allegation at [A52] to address the deficiencies identified in these reasons.
2.   Direct that the revised further amended statement of claim be filed and served within 7 days.
3.   Costs of both the strike out motion determined on 23 July 2020 and the plaintiffs’ notice of motion of 3 September 2020 be costs in the cause.
4.   List the matter for directions on 13 October 2020 at 8.30am.

Catchwords:
CIVIL PROCEDURE — Pleadings — Form and content of pleading — Defects — Leave to replead — Striking out — No reasonable cause of action or defence

Legislation Cited:
Australian Securities and Investments Commission Act 2001 (Cth), s 12CB
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 64
Competition and Consumer Law 2010 (Cth), sch 2, ss 21, 236
Corporations Act 2001 (Cth), ss 9, 53, 79, 180, 181, 182, 183, 198G, 232, 233, 420A, 437B, 437F, 439C, 440D, 422A, 442C, 444A, 444B, 1324, sch 2, items 2, 4(d), 90-15, 90-20
Insolvency Practice Rules (Corporations), r 75-225
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4; 14.7, 14.8, 14.28

Cases Cited:
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Arthur Young v Tieco International [1995] SASC 5173; (1995) 182 LSJS 367
Baden v Société Générale pour Favoriser le Developpement du Commerce et de l’Industrie en France SA [1992] 4 All ER 161; [1993] 1 WLR 509
Barclay Mowlem Construction Ltd v Dampier Authority (2006) 33 WAR 82; [2006] WASC 281
Barnes v Addy (1874) LR 9 Ch App 244; 22 WR 505
Baxter v Hamilton (2005) 15 Tas R 59; [2005] TASSC 64
Beconwood Securities Pty Ltd v Australia and New Zealand Banking Group [2008] FCA 594; (2008) 246 ALR 361
Blundell v Macrocom Pty Ltd [2004] NSWSC 895; (2004) 50 ACSR 549
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36
Brunninghausen v Glavanics (1999) 46 NSWLR 538; [1999] NSWCA 199
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25
Chahwan v Euphoric Pty Ltd (2008) 227 FLR 43; [2008] NSWCA 52
Cook v Deeks [1916] 1 AC 554
Correa v Whittingham (2013) 278 FLR 310; [2013] NSWCA 263
Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654
Donis v Donis (2007) 19 VR 577; [2007] VSCA 89
Dr…

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.

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Details

Case: [2020] NSWSC 1325
Decision Date: 30 September 2020

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant, Coolah Home Base, against an order of the trial judge who had allowed the plaintiff, McMillan, leave to amend his pleadings. McMillan sued Coolah Home Base for damages following an incident where he was injured at the defendant's premises. The plaintiff's original statement of claim was struck out on the basis that it did not disclose a reasonable cause of action. The plaintiff sought leave to amend, which was granted by the trial judge. The defendant appealed the decision to allow the amendment.

The central legal issue was whether the trial judge was correct in granting the plaintiff leave to amend his pleadings. The court considered whether the amended statement of claim disclosed a reasonable cause of action. The court was also required to determine whether the trial judge's decision to grant leave to amend was an abuse of discretion.

The court found that the trial judge did not err in granting leave to amend. The amended statement of claim sufficiently disclosed a reasonable cause of action, as it set out the relevant facts and legal basis for the plaintiff's claim. The court held that the trial judge's decision was not an abuse of discretion, as there was no evidence to suggest that the plaintiff was attempting to delay or otherwise abuse the judicial process. The court emphasised the importance of the principle that a court should not strike out a pleading unless it is satisfied that there is no reasonable cause of action or defence. The appeal was dismissed.

The court dismissed the defendant's appeal and affirmed the decision of the trial judge to allow the plaintiff leave to amend his pleadings. The court ordered that the costs of the appeal be paid by the defendant.

Orders