Verner v Giannaros - [2016] NSWSC 242

Supreme Court

New South Wales

Medium Neutral Citation: Verner v Giannaros &Ors [2016] NSWSC 242
Hearing dates: 4 March 2016
Decision date: 04 March 2016
Jurisdiction: Equity
Before: White J
Decision:
Amended Notice of Motion dismissed with costs.

Catchwords: PRACTICE AND PROCEDURE — Pleadings — Application to strike out pleadings pursuant to UCPR r 14.28(1)(b) — Application for particulars pursuant to UCPR r 15.10(1)(a) — Circumstance in which Court will entertain objection to pleadings and argument in relation to particulars — Contemporary purposes of pleadings — Pleadings enable the issues to be identified — Defendants understand the case to be met — Application dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
Hillig v Darkinjung Pty Ltd [2007] NSWSC 683
Verner v Giannaros [2015] NSWSC 1406
Category: Procedural and other rulings
Parties: Dale Andrew Verner by his tutor Michelle Verner (Plaintiff)
Michael Giannaros (1st Defendant)
Effy Pantechis (2nd Defendant)
Marrina Giannaros (3rd Defendant)
Mia Pantechis (4th Defendant)
Representation:
Counsel:
J E Thomson with K J Young (Plaintiff)
A Crossland with K Jones (Defendants)
Solicitors:
Philip Gengos & Co (Plaintiff)
Dean & Dean (1st and 2nd Defendants)

File Number(s): 2015/247204

Judgment

HIS HONOUR: This is an application to strike out an amended statement of claim in its entirety, or alternatively to strike out particular paragraphs. The essence of the defendants' complaint is that the statement of claim does not contain sufficient particularity.
The approach to such an application today where proceedings are or should be case managed and orders are made for the service of the parties' evidence in advance of the hearing is aptly described by Martin C J in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281. His Honour was there dealing with objections to statement of claim and noted that the list of objections ran to some 40 pages. His Honour said (at [4]-[8]):

"[4] It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.
[5] In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; firstly, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; secondly, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; thirdly, the exchange of expert reports well in…

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 Verner v Giannaros

Details

AGLC: Verner v Giannaros [2016] NSWSC 242
Case: [2016] NSWSC 242
Decision Date: 04 March 2016

CaseChat Overview and Summary

The case of Verner v Giannaros involved an application to strike out pleadings and an application for particulars under the Uniform Civil Procedure Rules. The plaintiff, Verner, sought to have the defendants' pleadings struck out, arguing they failed to comply with the requirements of the rules. The defendants, Giannaros, opposed the application and sought particulars to clarify the claims made by the plaintiff. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the defendants' pleadings were compliant with the rules and whether the plaintiff's application to strike out the pleadings was justified. Additionally, the court needed to decide if the plaintiff's application for particulars was appropriate and whether the defendants' opposition to the application was valid. The court also considered the contemporary purposes of pleadings, which include identifying the issues and ensuring the defendants understand the case against them.

The court found that the defendants' pleadings were sufficient to enable the issues to be identified and that the defendants understood the case to be met. The court noted that pleadings serve the purpose of ensuring that the defendants are aware of the claims being made against them and have an opportunity to respond. The application to strike out the pleadings was dismissed as the court found no grounds for doing so. The court also dismissed the application for particulars, stating that the defendants' opposition was valid and that the pleadings provided sufficient information to enable the defendants to understand the case against them.

The court's decision was that the application to strike out the pleadings was dismissed, and the application for particulars was also dismissed. The court emphasised that pleadings are a fundamental part of the litigation process and serve to ensure that the defendants are aware of the claims being made against them. The court's decision was based on the contemporary purposes of pleadings and the need for defendants to understand the case to be met.

Orders