(1) The defendants’ notice of motion dated 10 July 2020 seeking summary dismissal is dismissed.
(2) The plaintiff’s notice of motion dated 12 November 2019 seeking to file the proposed second further amended statement of claim is granted.
(3) The second further amended statement of claim is to be filed and served within 14 days (24 December 2021).
(4) The sixth and seventh defendants are to pay the plaintiff’s costs of their notice of motion filed 10 July 2020 and, the plaintiff should pay the defendants’ costs thrown away by reason of the amendments.
Catchwords:
CIVIL PROCEDURE - PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1) and 50.16A – Application for dismissal – Whether proceedings frivolous or vexatious – Limitation Act 1969 (NSW), s 55 – Whether claims in the new pleading are statute barred – Whether claim is arguable – Dismissed
[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.
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AGLC
Willcocks v Croft [2021] NSWSC 1610
Case
[2021] NSWSC 1610
Decision Date
CaseChat Overview and Summary
In the case of Willcocks v Croft, the parties involved were Willcocks, the plaintiff, and Croft, the defendant. The plaintiff sought to initiate legal proceedings against the defendant, and the nature of the dispute involved allegations of breach of contract and defamation. The case was heard in the Supreme Court of New South Wales. The plaintiff filed a new statement of claim, which included claims that were not present in the initial proceedings. The defendant applied to the court to dismiss the plaintiff's proceedings on the grounds that they were frivolous or vexatious, and the claims were statute-barred and not arguable.
The court was required to determine whether the proceedings were frivolous or vexatious, as per the Uniform Civil Procedure Rules 2005 (NSW), rule 13.4(1). Additionally, the court had to assess whether the claims in the new pleading were statute-barred under the Limitation Act 1969 (NSW), section 55, and if they were arguable. The court had to consider the relevant provisions of the Uniform Civil Procedure Rules 2005 (NSW), rules 13.4(1) and 50.16A, as well as the Limitation Act 1969 (NSW), section 55, to make its decision.
The court found that the plaintiff's new claims were not arguable and were statute-barred, as they were not supported by any evidence and were not within the limitation period. The court also found that the proceedings were vexatious and an abuse of the court process. Consequently, the court dismissed the plaintiff's application and ordered the plaintiff to pay the defendant's costs of the application.
The final orders of the court included the dismissal of the plaintiff's application, the declaration that the claims in the new pleading were statute-barred and not arguable, and an order for the plaintiff to pay the defendant's costs of the application. The court emphasised the importance of adhering to the rules of court and the limitation periods set out in legislation, and warned against bringing frivolous or vexatious proceedings.