See par [123]. The Court orders that the plaintiffs’ statement of claim be struck out, that the plaintiffs’ application for leave to file the proposed amended statement of claim be dismissed and that the proceedings be dismissed. The Court further orders that the plaintiffs pay the defendant’s costs of its notice of motion filed on 28 August 2020 and that the plaintiffs pay the defendant’s costs of the proceedings not otherwise the subject of any costs order.
Catchwords:
CIVIL PROCEDURE — Pleadings — Fraud — Specific and particular allegations — Where the plaintiffs filed a statement of claim alleging fraud on the part of the defendant — Where the statement of claim was 150 pages long and comprised obscure allegations, was repetitive and generally did not comply with the applicable rules of pleading — Where the fraud alleged was not pleaded and particularised specifically — Where the defendant sought by notice of motion that the plaintiffs’ statement of claim be struck out pursuant to UCPR r 14.28 — Where the plaintiffs submitted in response a proposed amended statement of claim — Where the proposed pleading was infected with substantially the same defects as the filed statement of claim — Where the Court held that the whole of the statement of claim should be struck out — Where the Court further held that it would involve an abuse of process to permit the plaintiffs to continue to prosecute the current proceedings against the defendant — Where the Court dismissed the proceedings
Counsel: D Kelly (defendant) First and second plaintiff self-represented
Solicitors: McCulloch & Buggy Lawyers (defendant)
File Number(s):
2020/084897
Judgment
The plaintiffs, Koula Rafailidis and Efrem Rafailidis, commenced these proceedings against the defendant, Camden Council, by filing a statement of claim on 17 March 2020.
By notice of motion filed on 28 August 2020, the defendant applied pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 14.28 for an order that the statement of claim be struck out, and for an order that the plaintiffs pay…
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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AGLC
Rafailidis v Camden Council [2021] NSWSC 1087
Case
[2021] NSWSC 1087
Decision Date
CaseChat Overview and Summary
The case of Rafailidis v Camden Council involved the plaintiffs, Mr and Mrs Rafailidis, who brought an action against Camden Council for fraud. They filed a 150-page statement of claim which contained numerous vague, repetitive, and obscure allegations that did not comply with the rules of pleading. The council applied to strike out the statement of claim under UCPR r 14.28 on the basis that the fraud alleged was not specific or particularised as required. The plaintiffs responded by submitting a proposed amended statement of claim, but this too was found to have similar defects. The court found that the entire statement of claim should be struck out and dismissed the proceedings, holding that it would be an abuse of process to allow the plaintiffs to continue with the current action against the council.
The central legal issue before the court was whether the plaintiffs' statement of claim sufficiently pleaded fraud in a manner compliant with the rules of pleading. The court had to determine whether the plaintiffs had provided specific and particular allegations of fraud, as required by the rules, and whether striking out the entire statement of claim was an appropriate remedy. The court also had to consider whether permitting the plaintiffs to amend the pleadings and continue the proceedings would constitute an abuse of process.
In considering these issues, the court held that the statement of claim was replete with defects and did not meet the necessary standard of specificity and particularity required for allegations of fraud. The court found that the proposed amended statement of claim contained substantially the same defects as the original pleading. The court concluded that striking out the whole of the statement of claim was necessary and appropriate, and that allowing the plaintiffs to continue with the action would be an abuse of process. The court dismissed the proceedings entirely.