McMurtrie v Commonwealth of Australia & Ors [2002] NSWSC 704

McMurtrie v Commonwealth of Australia & Ors [2002] NSWSC 704

The amended statement of claim did not plead the material facts necessary to establish the alleged contract, breach of contract, negligence, duty of care, breach of duty, or economic loss claim against ATSIC, and particulars could not cure those omissions. The pleading against DSC likewise failed to state the material facts establishing the alleged agreement and alleged breaches, and para 15 appeared to plead an unenforceable agreement to enter into an agreement. Although DSC did not establish that any possible claim was necessarily statute barred or that inconsistency with the written lease should prevent pleading the intended contractual obligation, the pleading deficiencies required...

Jurisdiction
Australia
Judgment Date
13 August 2002
Procedural Posture
Appeals From a Decision of Master Harrison in Supreme Court Proceedings Concerning Leave to File and Serve an Amended Statement of Claim / Appeal Before Studdert J From Master's Orders Made on 19 March 2002 and 24 May 2002
Outcome
Appeals by ATSIC and DSC allowed; statement of claim against both appellants to be struck out, with the respondent given an opportunity to place evidence before the Court in support of any application to replead.
Legal Topics
['amended Statement of Claim' 'striking Out Pleadings' 'reasonable Cause of Action' 'embarrassment, Prejudice or Delay' 'novation' 'pure Economic Loss' 'agreement to Enter Into an Agreement' 'relation Back of Amendments']
['civil Procedure' 'pleadings' 'contract Law' 'negligence' 'limitation of Actions'] ['amended Statement of Claim' 'striking Out Pleadings' 'reasonable Cause of Action' 'embarrassment, Prejudice or Delay' 'novation' 'pure Economic Loss' 'agreement to Enter Into an Agreement' 'relation Back of Amendments']

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Procedural Posture

Appeals From a Decision of Master Harrison in Supreme Court Proceedings Concerning Leave to File and Serve an Amended Statement of Claim / Appeal Before Studdert J From Master's Orders Made on 19 March 2002 and 24 May 2002

Legal Issues

  1. 1 ['Whether the amended statement of claim against ATSIC adequately pleaded causes of action in contract and negligence.' 'Whether the amended statement of claim against DSC adequately pleaded a cause of action in contract.' 'Whether the alleged DSC claim was statute barred under the Limitation Act and Supreme Court Rules Pt 20 r 4.' 'Whether an alleged oral agreement with DSC was untenable because of inconsistency with a written lease.']

Ratio Decidendi

The amended statement of claim did not plead the material facts necessary to establish the alleged contract, breach of contract, negligence, duty of care, breach of duty, or economic loss claim against ATSIC, and particulars could not cure those omissions. The pleading against DSC likewise failed to state the material facts establishing the alleged agreement and alleged breaches, and para 15 appeared to plead an unenforceable agreement to enter into an agreement. Although DSC did not establish that any possible claim was necessarily statute barred or that inconsistency with the written lease should prevent pleading the intended contractual obligation, the pleading deficiencies required...

Court Disposition

Appeals by ATSIC and DSC allowed; statement of claim against both appellants to be struck out, with the respondent given an opportunity to place evidence before the Court in support of any application to replead.

Orders

  • ['The respondent is to file and serve within fourteen days any affidavit or affidavits supporting an application to be permitted to replead his statement of claim.' 'The matter is to be listed for further directions and/or argument before Studdert J on Tuesday 10 September 2002.']