Suda Ltd v Sims (No. 3)

In *Suda Ltd v Sims (No. 3)*, the Supreme Court of Western Australia considered an application by the defendant, Sims, to dismiss the plaintiff's, Suda Ltd's, repleaded reply and counterclaim. Sims argued that these pleadings had no reasonable prospect of success, were frivolous or vexatious, or otherwise constituted an abuse of process, particularly in light of alleged similarities to issues raised in other proceedings. The court also addressed the question of whether costs should be awarded on an indemnity basis due to an alleged unreasonable act or omission.

The central legal issues before the court were whether Suda Ltd's repleaded reply and counterclaim were so lacking in merit as to warrant dismissal under the relevant rules of court, and whether the doctrine of *Anshun* estoppel applied to preclude Suda Ltd from pursuing these claims. Additionally, the court had to determine if Sims had established grounds for an indemnity costs order.

Justice Lucev found that Suda Ltd's repleaded reply and counterclaim did not meet the threshold for dismissal. The court reasoned that the pleadings, while potentially raising complex and overlapping issues with other litigation, did not demonstrate a complete absence of a reasonable prospect of success. The judge applied the principles governing applications to strike out pleadings, emphasizing that such applications are a drastic remedy and should only be granted in clear cases. The court also considered the *Anshun* estoppel principles, concluding that the current proceedings did not fall within their ambit to the extent that dismissal was warranted. Regarding costs, the court found that while there were points of contention, the conduct of Suda Ltd did not amount to an unreasonable act or omission that would justify an order for indemnity costs.

The application to dismiss the repleaded reply and counterclaim was dismissed. The court ordered that the costs of the application be costs in the cause.