Sondakh v Herliman - [2021] NSWSC 1144

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sondakh v Herliman [2021] NSWSC 1144
Hearing dates: 26 August 2021
Date of orders: 9 September 2021
Decision date: 09 September 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court Orders:
(1) The Registrar General be joined as the ninth defendant.
(2) The plaintiff is to file and serve the proposed further amended statement of claim (circulated 17 July 2021) within 14 days.
(3) The third defendant’s notice of motion filed 5 May 2021 is dismissed.
(4) Costs of both notices of motion are reserved.

Catchwords:
PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1) and 14.28 – Application for dismissal – Whether causes of action can be made out – Whether pleadings are defective – Requirements to plead actual knowledge – Application dismissed

Legislation Cited:
Limitation Act 1969 (NSW), s 55
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1), 14.28(1)

Cases Cited:
Banks v Alphatise Pty Ltd [2014] NSWSC 1437
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613
Nadinic v Drinkwater [2017] NSWCA 114
Preston v Star City Pty Ltd [1999] NSWSC 1273 at
Webster v Lampard(1993) 177 CLR 598
Wickstead v Browne (1992) 30 NSWLR 1

Category: Procedural rulings
Parties: Fanya Sondakh (Plaintiff)
Vincentius Herliman (First Defendant)
Dora Maddock (Second Defendant)
Takouhi Kessegian (Third Defendant)
Eagle Enterprise Pty Ltd (Fourth Defendant)
Victor Berger (Fifth Defendant)
Tibby Morgenstern (Sixth Defendant)
Stuart McDougall (Seventh Defendant)
Representation:
Counsel:
T. Rogers (Plaintiff)
S. O’Sullivan and N. Simone (Third Defendant)
Solicitors:
B. Gubbay (Plaintiff)
D. Iacono (Third Defendant)

File Number(s): 2020/161839
Publication restriction: Nil

Choose an item.

Judgment

There are two notices of motion before this court. One by the plaintiff and one by the third defendant.
By the notice of motion filed on 5 May 2021, the third defendant seeks an order that the plaintiff’s statement of claim filed on 16 November 2020 be dismissed, insofar as it relates to the third defendant, pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or in the alternative, that it be struck out, insofar as it relates to the third defendant, pursuant to UCPR 14.28(1).
By notice of motion filed 28 July 2021, the plaintiff seeks leave to file a proposed further amended the statement of claim, circulated 17 July 2021.
The plaintiff is Fanya Sondakh, the first defendant is Vincentius Herliman (the plaintiff’s former husband). The second defendant is Dora Maddock (solicitor), the third defendant is Takouhi Kessegian (accountant), the fourth defendant is Eagle Enterprise Pty Ltd, the fifth defendant is Victor Berger (then a practicing solicitor), the sixth defendant is Tibby Morgenstern (solicitor), the seventh defendant is Stuart McDougall (solicitor)…

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 Sondakh v Herliman

Details

AGLC: Sondakh v Herliman [2021] NSWSC 1144
Case: [2021] NSWSC 1144
Decision Date: 09 September 2021

CaseChat Overview and Summary

The case of Sondakh v Herliman involved the plaintiff, Sondakh, filing an application for dismissal against the defendant, Herliman. The dispute centred around the plaintiff's ability to make out certain causes of action and the sufficiency of the pleadings, specifically whether the plaintiff's claims met the requirements for pleading actual knowledge. The application was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the plaintiff's causes of action could be established as a matter of law and whether the pleadings were defective, particularly in relation to the standard of proof required to plead actual knowledge. The court had to assess the allegations in the plaintiff's statement of claim against the requirements set out in the Uniform Civil Procedure Rules 2005 (NSW).

The court found that the plaintiff had not established that the claims could not be made out as a matter of law. It determined that the pleadings, although perhaps not perfect, did not fall short to the extent that they warranted dismissal. The court emphasised the need for a high threshold to be met for an application of this nature to succeed, particularly under rules 13.4(1) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). The court concluded that the plaintiff's claims, while perhaps not framed in the most precise manner, were sufficient to proceed to trial. Therefore, the application for dismissal was dismissed.

The final order of the court was that the application for dismissal was to be dismissed with no orders as to costs.

Orders