Silversides Superfunds Pty Limited v Silverstate Developments Pty Limited - [2008] NSWSC 904

CITATION: Silversides Superfunds Pty Limited v Silverstate Developments Pty Limited [2008] NSWSC 904

HEARING DATE(S): 21 August 2008

JUDGMENT DATE :
2 September 2008

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I grant leave to the Plaintiffs to amend paragraphs 6 and 9 in the statement of claim.
2. I order that the notice of motion filed by the Defendants on 31 March 2008 be dismissed.
3. I order that the Defendants pay the costs of the Plaintiffs of the aforesaid notice of motion.

CATCHWORDS: PRACTICE - pleadings - application to strike out statement of claim - whether statement of claim discloses a reasonable cause of action.

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Barnes v Addey (1874) LR 9 Ch App 244
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Glandon Pty Limited v Strata Consolidated Pty Limited (1993) 11 ACSR 543
Piccardi v Caldekia Pty Limited (Supreme Court of New South Wales, 18 September 1998, unreported)
Brunninghausen v Glavanics [1999] NSWCA 199; (1998 –1999) 46 NSWLR 538
Denara Nominees Pty Limited v Scolaro [2002] WASC 252
McEwen v Combine Coast Cranes Pty Limited (2002) 44 ACSR 244
Farah Constructions Pty Limited v Say Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89

PARTIES: Silversides Superfunds Pty Limited (First Plaintiff)
Hallinan Super Fund Pty Limited (Second Plaintiff)
Gregory John Silversides (Third Plaintiff)
Terrence Michael Hallinan (Fourth Plaintiff)
Silverstate Developments Pty Limited (First Defendant)
Cameron Patrick Anderson (Second Defendant)

FILE NUMBER(S): SC 5353 of 2007

COUNSEL: Mr C. Harris SC and Ms C. Champion (Plaintiffs)
Mr A. McInerney and Mr D. Barnett (Defendants)

SOLICITORS: Matthews Folbigg Pty Limited (Plaintiffs)
Ellison Tillyard Callanan (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Tuesday, 2 September 2008

5353 of 2007 SILVERSIDE SUPERFUNDS PTY LIMITED and ORS –v- SILVERSTATE DEVELOPMENTS PTY LIMITED and ANOR

JUDGMENT

1 HIS HONOUR: By notice of motion filed on 31 March 2008 the First and Second Defendants, Silverstate Developments Pty Limited and Cameron Patrick Anderson claim an order that the statement of claim, in whole or in part, be struck out; and, in the alternative, an order that the statement of claim, in whole or in part, be dismissed.

2 At the outset of the hearing the foregoing relief was clarified by the Defendants, to the extent that the claim for dismissal (being a claim for dismissal of the proceedings, rather than a claim in respect to the pleading) was no longer being pursued, and that the relief presently sought by the Defendants was an order for the striking out, in whole or in part, of the statement of claim. That application was brought pursuant to the provisions of Part 14, rule 28 of the Uniform Civil Rules 2005.

3 The substantive proceedings were instituted by summons filed by the Plaintiffs, Silversides Superfunds Pty Limited (“Silversides”), Hallinan…

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: [2008] NSWSC 904
Decision Date: 2 September 2008

CaseChat Overview and Summary

Silversides Superfunds Pty Limited sought to recover losses it claimed to have suffered due to the actions of Silverstate Developments Pty Limited. The dispute was brought before the Federal Circuit and Family Court of Australia. The central issue in the case was whether Silversides Superfunds had established a reasonable cause of action against Silverstate Developments, thereby justifying the continuation of the proceedings. The application by Silverstate Developments to strike out the statement of claim argued that it failed to disclose a reasonable cause of action.

The court assessed whether the statement of claim met the threshold of disclosing a reasonable cause of action, as required by the relevant procedural rules. The court noted that the primary consideration was whether the facts pleaded in the statement of claim, if accepted as true, could possibly entitle Silversides Superfunds to succeed in the proceedings. The court found that the statement of claim, while not perfect, contained sufficient particulars to warrant the proceedings being allowed to continue. The allegations, if proven, could potentially result in liability on the part of Silverstate Developments.

Ultimately, the court dismissed Silverstate Developments' application to strike out the statement of claim. The court held that the statement of claim disclosed a reasonable cause of action, and therefore, the proceedings were not to be terminated at that stage. The matter would proceed to the next steps of the litigation process.

Orders