Rudenko v Rudenko and Sons Pty Ltd - [2019] NSWSC 1368

Supreme Court

New South Wales

Medium Neutral Citation: Rudenko v Rudenko & Sons Pty Ltd [2019] NSWSC 1368
Hearing dates: 2 October 2019
Date of orders: 11 October 2019
Decision date: 11 October 2019
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The defendants’ notice of motion filed 19 July 2019 is dismissed.

(2) The defendants are to pay the plaintiff’s costs on an ordinary basis.

(3) The defendants are to file and serve a defence on or before 5.00 pm on 1 November 2019.
(4) The matter is listed for directions at 9.00 am on 8 November 2019 before the registrar.
Catchwords: PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) 5.10 – Order for particulars – No point of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 5.1. 5.10
Cases Cited: Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214; (1977) 13 ALR 41
Deemah Marble & Granite Pty Ltd (in liq) v Sutherland [2001] NSWSC 829
Fregnan v Stanizzo (2016) 92 NSWLR 318; [2016] NSWCA 264
Rudenko v Rudenko & Sons Pty Ltd [2019] NSWSC 532
Sims v Wran [1984] 1 NSWLR 317
Verner v Giannaros [2016] NSWSC 242
Category: Procedural and other rulings
Parties: Genady Rudenko (Plaintiff)
Rudenko & Sons Pty Ltd (First Defendant)
Wolodymyr Rudenko aka Volodia Rudenko (Second Defendant)
Representation:
Counsel:
J Spinak (Plaintiff)
T Flaherty (Defendants)
Solicitors:
Carroll & O’Dea Lawyers (Plaintiff)
Russell Kelly & Associates (Defendants)

File Number(s): 2016/356268
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 19 July 2019, the defendants seek an order pursuant to r 15.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the plaintiff file and serve all or part of the particulars that have been requested by the defendants in their written request dated 21 June 2019.
The plaintiff is Genady Rudenko. The first defendant is Rudenko & Sons Pty Ltd. The second defendant is Wolodymyr Rudenko aka Volodia Rudenko. The plaintiff relied upon the affidavit of Daniel O’Brien dated 15 August 2019. The defendants relied upon the affidavit of their solicitor Bradley James Kelly dated 18 July 2019. The parties also relied upon a joint court book.

Procedural history

The defendants first sought particulars of the plaintiff’s proposed further amended statement of claim (“PFASC”) on 8 October 2018 (“the first request”). This was in response to an order made by me, over the plaintiff’s objections, on 20 September 2018 directing that the plaintiff respond to the request for particulars, after which the defendants were to inform the plaintiff whether or not they would consent to the filing of the PFASC.
On 22 October 2018, the plaintiff provided replies to the defendants’ lengthy requests for particulars. Three days later on 25 October 2018, the defendants indicated that they would not provide their consent to the filing of the PFASC.
On 10 May 2019, the plaintiff was successful in his application in this Court before Walton J, who granted him…

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 Rudenko v Rudenko and Sons Pty Ltd

Details

AGLC: Rudenko v Rudenko and Sons Pty Ltd [2019] NSWSC 1368
Case: [2019] NSWSC 1368
Decision Date: 11 October 2019

CaseChat Overview and Summary

The case of Rudenko v Rudenko and Sons Pty Ltd was heard in the Supreme Court of New South Wales, where the plaintiff sought clarification and detail regarding certain allegations made in a proceeding against the defendant. The plaintiff sought particulars about specific transactions and actions that were broadly alleged in the original pleadings. The matter centred around the interpretation and application of the Uniform Civil Procedure Rules 2005 (NSW) and the specific requirements for particulars under rule 5.10.

The legal issues that the court needed to address included whether the plaintiff's request for particulars was justified and whether the defendant had provided sufficient detail in their pleadings to meet the demands of the rules. The court had to consider whether the plaintiff's request was a genuine attempt to understand the claims or whether it was being used as a tactic to delay or disrupt the proceedings. Additionally, the court examined whether the defendant's responses were adequate in providing the necessary information to allow the plaintiff to properly respond to the claims.

The court found that the plaintiff's request for particulars was reasonable and necessary for the proper conduct of the case. However, it held that there was no point of principle that required the court to order the defendant to provide the requested particulars. The court emphasised that the rules are intended to facilitate the just resolution of disputes and that any requests for particulars should be considered in the context of achieving that goal. The judge determined that the information already provided by the defendant was sufficient for the plaintiff to adequately respond to the claims and that further detail was not necessary at that stage of the proceedings. Consequently, the court declined to make an order for particulars but encouraged the parties to continue with the litigation in a cooperative manner.

No further orders were made by the court beyond the refusal to order particulars. The case highlights the importance of providing enough detail in pleadings to allow for the fair and efficient resolution of disputes, while also acknowledging the need to balance that requirement with the broader goals of the litigation process.

Orders