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Preston v Star City Pty Ltd

Preston v Star City Pty Ltd

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Case Copied 22 December 1999 104 min read

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CITATION: Preston v Star City Pty Ltd [1999] NSWSC 1273 revised - 26/06/2000

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20334 of 1998

HEARING DATE(S): 21/9/99

JUDGMENT DATE:
22 December 1999

PARTIES :

Alexander Preston
Star City Pty Ltd

JUDGMENT OF: Wood CJatCL

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Master Harrison

COUNSEL : Plaintiff/Respondent: P. Semmler QC, J. Keesing/N. Mullany
Defendant/Applicant J.C. Campbell QC. Gageller

SOLICITORS: Gells Sydney
Coudert Brothers

CATCHWORDS: Appeal from Master Harrison; Strike Out motion

DECISION: Appeal dismissed.; Motion of defendant dismissed so far as it relates to the statutory count. So much of the statement of claim as deals with that aspect to be struck out. Plaintiff granted leave to file amended statement of claim.

N THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
No. 20334/98

WOOD CJ at CL
WEDNESDAY 22 DECEMBER 1999

PRESTON v STAR CITY PTY LTD
JUDGMENT

1 WOOD CJ at CL: This matter comes before the Court by way of an appeal from Master Harrison, refusing to strike out the plaintiff’s statement of claim, pursuant to Part 15 r 26 of the Supreme Court Rules, other than for three paragraphs relating to the adequacy with which the plaintiff’s claim for damages was pleaded. The plaintiff was given an opportunity to amend the statement of claim in order to cure the deficiencies identified in these three paragraphs. Costs of the motion were ordered to be costs in the cause. 2 The plaintiff has take up the opportunity offered, and has filed an amended statement of claim dealing with the paragraphs struck out, but also alleging matters in support of additional causes of action, based upon undue influence/unjust enrichment, and unconscionable conduct. So far as the amendments relate to the manner in which the plaintiff has pleaded or particularised his claims variously for aggravated damages, exemplary damages, interest, or recoupment of gambling losses, it was agreed that they need not be dealt with in this appeal. It is confined to the existence of the causes of action pleaded in the initial statement of claim, as supplemented in the amended statement of claim, it being the defendant’s submission that no relevant duty of care, or other basis upon which recovery might be pursued, exists in law, and that as a result, “no reasonable cause of action” has been disclosed, as that phrase appears in Pt 15 r 26 (1)(a). 3 The parties agree that, although the Master has not given consideration to the fresh causes of action pleaded, it is convenient for the matter to be dealt with by me as a whole. To permit that to occur, a notice of motion seeking orders for the striking out of the new amendments has been filed, and made returnable before me. Although I have some hesitation in dealing with the matter partly as an appeal, and partly afresh, on the whole the course suggested appears convenient and such as to avoid unnecessary delay and cost. It…

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: [1999] NSWSC 1273
Decision Date: 22 December 1999

CaseChat Overview and Summary

The matter before the court was an appeal from a decision of Master Harrison to strike out a statement of claim. The plaintiff, Preston, sought damages against the defendant, Star City Pty Ltd, for injuries sustained at the defendant's casino. The dispute centred around the plaintiff's claim that he slipped and fell due to a wet floor, resulting in personal injuries. The case required the court to determine whether the plaintiff's statement of claim was valid and if it disclosed a reasonable cause of action.

The legal issues included whether the plaintiff's statement of claim complied with the necessary requirements of the Civil Procedure Act and if it sufficiently outlined the facts and legal basis for his claim against the casino. The court had to consider the adequacy of the plaintiff's description of the incident, the injuries sustained, and the defendant's alleged negligence. Additionally, the court needed to assess if the plaintiff's claim was within the statute of limitations and if the statement of claim provided sufficient particulars to allow the defendant to respond adequately.

The court found that the plaintiff's statement of claim was deficient in several respects. It did not sufficiently detail the circumstances of the incident, the nature of the injuries, or the basis for the defendant's alleged negligence. The court held that the statement of claim did not comply with the requirements set out in the Civil Procedure Act, particularly in terms of providing adequate particulars. Consequently, the court upheld the Master's decision to strike out the plaintiff's statement of claim. The appeal was dismissed, and the plaintiff was given an opportunity to amend and re-file the claim within a specified period.

Orders