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Watiwat v Dixon

Watiwat v Dixon

Case [2017] NSWSC 360 7 April 2017

Standing

Abuse of Process

Strike Out

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Watiwat v Dixon [2017] NSWSC 360
Hearing dates: 29 March 2017
Date of orders: 29 March 2017
Decision date: 07 April 2017
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. The Amended Statement of Claim filed 10 February 2017 be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
2. Plaintiff have leave to file a Further Amended Statement of Claim that complies with the rules in the UCPR as to pleading on or before 10 May 2017.
3. Order Plaintiff to pay Defendant’s costs of the Amended Notice of Motion filed 9 February 2017.
4. Re-list the matter in the Equity Registrar’s List for further directions on 11 May 2017.

Catchwords: PRACTICE AND PROCEDURE – pleading – striking out – whether pleading discloses no reasonable cause of action, has a tendency to cause prejudice or embarrassment, or is otherwise an abuse of process –pleadings struck out with leave to replead
Legislation Cited: Australian Consumer Law, ss 20, 21, 236, 224, 225
Bankruptcy Act 1966 (Cth), ss 58, 73, 263A, 263B
Competition and Consumer Act 2010 (Cth), Sch 2
Conveyancing Act 1919 (NSW), s 66G
Criminal Procedure Act 1986 (NSW), ss 14, 49, 174
Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited: Arthur Young v Tieco International (1999) 182 LSJS 367
Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475
Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81
Bruce v Odhams Press Ltd [1936] 1 KB 697
Collier v Country Women’s Association of New South Wales [2016] NSWSC 1631
Collier v Country Women’s Association of New South Wales [2017] NSWCA 22
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14
Eliezer v The Owners – Strata Plan No 51682 [2017] NSWSC 278
Gunns Ltd v Marr [2005] VSC 251
Ingot Equity Capital Markets Pty Ltd v Macquarie Equity Capital Investments Ltd [2004] NSWSC 1136
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206
Little v Law Institute of Victoria (No 3) [1990] VR 257
Northam v Favell Favco Holdings Pty Ltd (Supreme Court (NSW) 7 March 1995 unrep)
Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72
Shelton v National Roads and Motorist Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393
Thorp v Holdsworth [1876] 3 Ch D 637
Willers v Joyce [2016] UKSC 43
Wilson, in the matter of Wilson v Official Trustee in Bankruptcy [2000] FCA 1251
Category: Procedural and other rulings
Parties: Bienvenido S Watiwat (Plaintiff)
Steven Robert Dixon (First Defendant)
Winie Leung (Second Defendant)
Carlos Vincenzo (Third Defendant)
Lion Finance Pty Ltd (Fourth Defendant)
Representation:
Counsel:
Plaintiff – self-represented
R A Parsons (First, Second, Third and Fourth Defendants)
Solicitors:
CLH Lawyers (First, Second, Third and Fourth…

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 Watiwat v Dixon

Details

AGLC: Watiwat v Dixon [2017] NSWSC 360
Case: [2017] NSWSC 360
Decision Date: 07 April 2017

CaseChat Overview and Summary

The matter before the court involved Watiwat, the plaintiff, suing Dixon, the defendant, in relation to alleged breaches of contract. The dispute was heard in the Supreme Court of New South Wales. The plaintiff claimed that the defendant failed to fulfill contractual obligations, resulting in significant losses. The defendant sought to have the plaintiff's pleadings struck out, arguing that they did not disclose a reasonable cause of action, had a tendency to cause prejudice or embarrassment, or were otherwise an abuse of process.

The central legal issue the court had to determine was whether the plaintiff's pleadings disclosed a reasonable cause of action. Additionally, the court had to consider whether the pleadings had a tendency to cause prejudice or embarrassment or were otherwise an abuse of process. The court examined the specific allegations in the plaintiff's statement of claim and assessed whether they were sufficient to warrant a trial. The court also evaluated the potential for prejudice to the defendant if the case proceeded and whether the pleadings adhered to the principles of procedural fairness.

The court found that the plaintiff's pleadings did not disclose a reasonable cause of action. The court determined that the allegations were vague and did not provide sufficient detail to support the claims. Furthermore, the court concluded that the pleadings had a tendency to cause prejudice or embarrassment to the defendant, as they lacked specificity and were overly broad. Consequently, the court exercised its discretion to strike out the pleadings with leave to the plaintiff to replead. This decision allowed the plaintiff an opportunity to amend their pleadings to more clearly articulate their claims and ensure they complied with the necessary legal standards.

The final orders of the court were that the plaintiff's pleadings be struck out with leave to amend. The plaintiff was given a specified period within which to file amended pleadings that adequately addressed the court's concerns. The court emphasised the importance of precise and well-supported allegations in any future pleadings to avoid the risk of further strikes out. This outcome highlights the stringent requirements for pleadings in civil litigation and the court's role in ensuring that proceedings are conducted fairly and efficiently.

Orders