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Moustach Pty Ltd v Takchi

Moustach Pty Ltd v Takchi

Case [2015] NSWSC 1013 7 July 2015

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Supreme Court

New South Wales

Medium Neutral Citation: Moustach Pty Ltd & Anor v Takchi & Ors [2015] NSWSC 1013
Hearing dates: 7 July 2015
Decision date: 07 July 2015
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Order paragraph 25 of the Amended Statement of Claim be struck out. Plaintiff have leave to file and service Further Amended Statement of Claim, repleading its claim under s 37A of the Conveyancing Act 1919 (NSW). Grant leave to Third and Fourth Defendants to file and serve any further application to disallow the amendments made by the Further Amended Statement of Claim. Order the Plaintiff to pay the costs of and incidental to the hearing of the motion today, as agreed or as assessed.

Catchwords: PRACTICE AND PROCEDURE – application to disallow amendments to the amended statement of claim – where contended that amended statement of claim cannot be established on evidence – where the form of the pleading attacked – whether amended statement of claim does not sufficiently plead elements necessary to exclude indefeasability under s 42 of the Real Property Act 1900 (NSW) – whether to disallow the amendment under the Uniform Civil Procedure Rules 2005 (NSW).
Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56, 56(1), 98
- Conveyancing Act 1919 (NSW) ss 37A, 37A(3), 39
Real Property Act 1900 (NSW) s 42
- Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 19.4.
Cases Cited: - Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
- Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
- Bowden v Weldon [2014] NSWSC 109
- General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
- Marcolongo v Chen (2011) 242 CLR 546
- McGuirk v University of New South Wales [2009] NSWSC 1424
- Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia [2006] NSWSC 607
- Simmons v NSW Trustee and Guardian [2014] NSWCA 405
- Young v Smith [2015] NSWSC 400
Category: Procedural and other rulings
Parties: Moustach Pty Ltd (First Plaintiff)
Moussa Moussa (Second Plaintiff)
Salima Moussa (Third Plaintiff)
Arlette Takchi as executrix of the estate of the late Eddie Takchi (First Defendant)
Arlette Takchi (Second Defendant)
DMRJ Pty Limited (Third Defendant)
TBT Investments Pty Limited (Fourth Defendant)
Representation:
Counsel:
D C Eardley (Plaintiffs)
K T Stanton (First and Second Defendants)
J M Ireland (Third and Fourth Defendants)
Solicitors:
Russo & Partners (Plaintiffs)
Barraket Stanton Lawyers (First and Second Defendants)
McGirr Lawyers (Third and Fourth Defendants)

File Number(s): 2013/205000

Judgment – EX TEMPORE

By notice of motion filed on 22 June 2015, the Third and Fourth Defendants seek an order disallowing an amendment made by the Plaintiffs in their Amended Statement of Claim filed on 15 June 2015. The Court has power to disallow an amendment to a pleading under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 19.4, to which Mr Ireland, who appears for the…

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 Moustach Pty Ltd v Takchi

Details

AGLC: Moustach Pty Ltd v Takchi [2015] NSWSC 1013
Case: [2015] NSWSC 1013
Decision Date: 07 July 2015

CaseChat Overview and Summary

Moustach Pty Ltd brought an action against Takchi regarding an interest in real property. The dispute centred on an application to disallow amendments to the amended statement of claim, which Moustach argued could not be established on evidence. The form of the pleading was also attacked, with the contention that the amended statement of claim did not sufficiently plead the elements necessary to exclude indefeasibility under section 42 of the Real Property Act 1900 (NSW). The case was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the amended statement of claim sufficiently pleaded the elements necessary to exclude indefeasibility under section 42 of the Real Property Act 1900 (NSW). The court also had to consider whether to disallow the amendment under the Uniform Civil Procedure Rules 2005 (NSW). The court needed to determine if the amended statement of claim adequately set out the facts that could potentially exclude the respondent's indefeasibility or if it merely set out a bare legal conclusion.

The court found that the amended statement of claim did not sufficiently plead the elements necessary to exclude indefeasibility. It was held that the amended statement of claim was insufficient because it did not plead facts which, if proven, would entitle the plaintiff to a declaration that the respondent's title was subject to the plaintiff's interest. The court noted that the amended statement of claim contained no more than bare legal conclusions and did not sufficiently plead the facts that were necessary to exclude indefeasibility. Consequently, the application to disallow the amendments was successful.

The court ordered that the application to disallow the amendments to the amended statement of claim be granted. The effect of this order was that the plaintiff's amended statement of claim would not be allowed to proceed further in the proceedings. This decision highlighted the importance of adequately pleading the necessary facts in order to challenge indefeasibility and the need for statements of claim to go beyond mere legal conclusions.

Orders