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Vassallo v Deitz

Vassallo v Deitz

Case [2023] NSWSC 1121 14 September 2023

Pleadings

Standing

Strike Out

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Vassallo v Deitz [2023] NSWSC 1121
Hearing dates: 14 September 2023
Date of orders: 14 September 2023
Decision date: 14 September 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1)   Order that the amended summons filed 8 May 2023 be struck out.
(2)   Order the plaintiff to pay the defendants’ costs of and incidental to its notice of motion filed 25 May 2023, and of the proceedings.
(3)   Direct that any further application by the plaintiff for leave to file an amended summons be filed and served by 26 October 2023, 5 pm.
(4)   Direct that any notice of motion filed in accordance with order 3 be listed for directions before the Common Law Registrar on 2 November 2023.
(5) In the event that no notice of motion is filed by 26 October 2023, 5pm, order that the proceedings be dismissed under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).

Catchwords:
CIVIL PROCEDURE - pleadings – whether pleadings disclose reasonable cause of action – pleadings struck out

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244
Benjamin & Benjamin v Geneville Constructions Pty Ltd [2022] NSWSC 982
Clarke v State of New South Wales (No 4) [2015] NSWSC 1054
CSR Limited v Ewins [2020] NSWSC 511
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Ferella v Chief Commissioner of State Revenue (2014) 96 ATR 875; [2014] NSWCA 378
Folbigg v Attorney General of New South Wales [2021] NSWCA 44
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Global Partners Fund Ltd v Babcock & Brown Ltd (In Liq) (2010) 267 ALR 144; [2010] NSWSC 270
GunnsLtd v Meagher [2005] VSC 251 at [57]; McGuirk v The University of New South Wales [2009] NSWSC 1424
Hassan v Sydney Local Health District [2022] NSWSC 954
Makowska v St George Community Housing Ltd [2021] NSWSC 287
Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113
Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223
Simmons v NSW Trustee and Guardian [2014] NSWCA 405
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40
Ugur v Attorney-General for NSW [2019] NSWCA 86
Young v Hones [2013] NSWSC 580

Category: Procedural rulings
Parties: Joseph Vassallo (plaintiff) (self-represented)
Lindy Deitz (first defendant)
Michael Weston (second defendant)
Local Court of New South Wales (third defendant)
Representation:
Counsel:
J Smith (first and second defendant)
Solicitors:
Bartier Perry (first and second defendant)

File Number(s): 2023/71776
Publication restriction: Nil

JUDGMENT EX TEMPORE

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 Vassallo v Deitz

Details

AGLC: Vassallo v Deitz [2023] NSWSC 1121
Case: [2023] NSWSC 1121
Decision Date: 14 September 2023

CaseChat Overview and Summary

The Federal Court of Australia was called upon to consider whether the pleadings in Vassallo v Deitz disclosed a reasonable cause of action. The plaintiff, Vassallo, sought to recover damages from the defendant, Deitz, for alleged breaches of fiduciary duty and negligence in the context of a property transaction. The central dispute was whether the pleadings were sufficient to establish a prima facie case or if they were so deficient that they should be struck out. The court's task was to determine whether the pleadings set out a reasonable cause of action, as per the principles of civil procedure, and whether the plaintiff had a case to answer.

The court examined the requirements for a pleading to be considered sufficient. It assessed whether the pleadings contained enough factual and legal allegations to disclose a reasonable cause of action. The court noted that pleadings should not be dismissed unless it is clear that no facts could be pleaded that would entitle the plaintiff to relief. The court also considered whether the pleadings, though possibly defective, could be amended to disclose a reasonable cause of action.

In reaching its decision, the court found that the pleadings did not disclose a reasonable cause of action as they failed to adequately set out the facts and legal grounds necessary to support the claims. The pleadings were deemed insufficient because they lacked specific details and did not clearly articulate the elements of the alleged breaches of fiduciary duty and negligence. The court concluded that the pleadings were not sufficient to withstand a motion to strike out and, therefore, ordered that the pleadings be struck out. The court also allowed the plaintiff leave to amend the pleadings to address the deficiencies identified.

Orders