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Sobh v Ali

Sobh v Ali

Case [2023] VSC 225 1 May 2023

Pleadings

Statement of Claim

Cause of Action

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2022 03478

BETWEEN:

SHARIF HASSAN SOBH & ANOR (according to the attached Schedule)	Plaintiffs/Defendants by Counterclaim
v
MARLINE ALI	Defendant/Plaintiff by Counterclaim

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2023
DATE OF JUDGMENT:	1 May 2023
CASE MAY BE CITED AS:	Sobh & Anor v Ali
MEDIUM NEUTRAL CITATION:	[2023] VSC 225

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PRACTICE AND PROCEDURE — Pleadings summons — Applicable principles — Statement of claim not coherently and succinctly pleading material facts to establish essential elements of cause of action – Pleading unnecessary and irrelevant allegations, facts which do not lead to any cause of action — Pleading conclusions without material facts – Pleadings vague, unclear and embarrassing – Statement of claim struck out – Wheelahan v City of Casey (No 12) [2013] VSC 316; Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs/Defendants by Counterclaim	Mr M Fox, Solicitor	Sea Change Conveyancing & Legal (NSW)
For the Defendant/Plaintiff by Counterclaim	Mr C Charnley of Counsel	Linda Ashley Law

HIS HONOUR:

Introduction

By Summons filed on 11 December 2022, the defendant applies to strike out the plaintiffs’ Statement of Claim (‘SOC’) indorsed on the Writ, in whole or in part, under r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). The orders sought also include that the plaintiffs file any amended SOC within three weeks, and costs.

Background

The SOC tells an incomplete story that is unfortunately not uncommon. It is common ground, although it is only pleaded in passing in the SOC, that the plaintiffs are the defendant’s parents. In very broad summary, the essential facts appear to be that the plaintiffs acquired their home at 14 Runecrest Terrace, Epping, Victoria (‘Runecrest’) with the assistance of the defendant — who was registered with them as a joint proprietor — and were later induced to part with their interests in Runecrest by what is said to be a breach of contract by the defendant, although the claim has all the hallmarks of an equitable claim that the defendant engaged in unconscionable conduct, or a claim in deceit. They seek to be placed back on the title to Runecrest (holding their interests jointly as between them, and as between them and the defendant as tenants in common) at no cost to themselves.

For the reasons set out below, it is necessary that the SOC be struck out as a whole with liberty to replead. Given the unusual form of the SOC, and the criticisms made of it by the defendant’s Counsel, it is desirable that I set out at some length why the SOC must be repleaded.

Pursuant to orders originally made Keith JR in February 2023, but later varied by me, the parties filed written submissions. I will refer to them in the course of…

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 Sobh v Ali

Details

AGLC: Sobh v Ali [2023] VSC 225
Case: [2023] VSC 225
Decision Date: 1 May 2023

CaseChat Overview and Summary

In the matter of Sobh v Ali, the court was presented with a dispute arising from a statement of claim that was deemed inadequate and insufficient in its pleadings. The plaintiff, Mr Sobh, sought to hold the defendant, Mr Ali, accountable for various alleged breaches of contract and tortious acts. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the statement of claim met the necessary standards for a valid pleading under the rules of court, particularly in terms of coherence, succinctness, and the inclusion of material facts necessary to establish the plaintiff's cause of action.

The court examined the statement of claim meticulously, identifying several critical deficiencies. The statement was found to lack coherence and succinctness, as it included numerous unnecessary and irrelevant allegations. Furthermore, it contained conclusions unsupported by material facts and was generally vague and unclear. The court referred to established jurisprudence, notably Wheelahan v City of Casey (No 12) and Uber Australia Pty Ltd v Andrianakis, to underscore the principles of effective pleading. These authorities emphasised the importance of a statement of claim that precisely and clearly sets out the material facts upon which the cause of action is based.

Based on its analysis, the court determined that the statement of claim did not comply with the requisite standards for a valid pleading. Consequently, the court struck out the statement of claim under the applicable rules of court. This decision effectively dismissed the plaintiff's case without further proceedings, as the deficiencies in the pleadings were deemed insurmountable without an amendment that could adequately address the identified shortcomings.

Orders