Stockland (Constructors) Pty Ltd & Anor v Darryl I Coombs Pty Ltd & 2 Ors [2002] NSWSC 721

Stockland (Constructors) Pty Ltd & Anor v Darryl I Coombs Pty Ltd & 2 Ors [2002] NSWSC 721

Paragraphs 16 to 25 of the amended cross-claim, and the proposed supplemented form in MFI R3, were embarrassing because they failed to plead the alleged representations, future matters, trade or commerce nexus, causation and loss with the precision required. Rather than immediately strike them out, the Court granted the third defendant leave to file a notice of motion seeking to substitute a new set of pleaded paragraphs, but ordered the third defendant to pay 80% of the plaintiffs' costs of the notice of motion on an indemnity basis and indicated the paragraphs would be struck out if the amendment application did not succeed.

Jurisdiction
Australia
Judgment Date
09 August 2002
Procedural Posture
Interlocutory Notice of Motion Concerning Pleadings in an Amended Cross Claim / Application by Plaintiffs/cross Defendants for Judgment Under Pt 13 Rr 3 and 5 of the Supreme Court Rules Or, Alternatively, to Strike Out Paragraphs 16 to 25 of the Amended Cross Claim Under Pt 15 R 26
Outcome
Leave granted to the third defendant to seek to replead paragraphs 16 to 25 of the amended cross-claim; costs ordered against the third defendant; existing paragraphs to be struck out if the amendment application failed.
Legal Topics
['amendment of Pleadings' 'strike Out' 'misleading or Deceptive Conduct' 'trade or Commerce' 'particulars' 'costs']
['civil Procedure' 'pleadings' 'trade Practices'] ['amendment of Pleadings' 'strike Out' 'misleading or Deceptive Conduct' 'trade or Commerce' 'particulars' 'costs']

Case Brief

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Procedural Posture

Interlocutory Notice of Motion Concerning Pleadings in an Amended Cross Claim / Application by Plaintiffs/cross Defendants for Judgment Under Pt 13 Rr 3 and 5 of the Supreme Court Rules Or, Alternatively, to Strike Out Paragraphs 16 to 25 of the Amended Cross Claim Under Pt 15 R 26

Legal Issues

  1. 1 ['Whether paragraphs 16 to 25 of the amended cross-claim should be struck out or judgment entered in respect of the causes of action pleaded there.' 'Whether alleged representations and particulars in the amended cross-claim were pleaded with sufficient precision.' 'Whether conduct connected with litigation could be pleaded as conduct in trade or commerce for the purposes of the Trade Practices Act 1974.' 'Whether the pleading properly identified alleged future matters, reliance, causation and loss under ss51A and 82 of the Trade Practices Act 1974.' 'What costs order should be made on the notice of motion.']

Ratio Decidendi

Paragraphs 16 to 25 of the amended cross-claim, and the proposed supplemented form in MFI R3, were embarrassing because they failed to plead the alleged representations, future matters, trade or commerce nexus, causation and loss with the precision required. Rather than immediately strike them out, the Court granted the third defendant leave to file a notice of motion seeking to substitute a new set of pleaded paragraphs, but ordered the third defendant to pay 80% of the plaintiffs' costs of the notice of motion on an indemnity basis and indicated the paragraphs would be struck out if the amendment application did not succeed.

Court Disposition

Leave granted to the third defendant to seek to replead paragraphs 16 to 25 of the amended cross-claim; costs ordered against the third defendant; existing paragraphs to be struck out if the amendment application failed.

Orders

  • ["The 3rd defendant is ordered to pay 80% of the plaintiffs' costs of the Notice of Motion of 28 June 2002 on an indemnity basis." 'The 3rd defendant is granted leave to file a Notice of Motion seeking to substitute with a new set of pleaded paragraphs in place of (a) the existing paragraphs 16 - 25 of the amended...