Moustach Pty Ltd & Anor v Takchi & Ors [2015] NSWSC 1013

Moustach Pty Ltd & Anor v Takchi & Ors [2015] NSWSC 1013

Paragraph 25 of the Amended Statement of Claim was struck out because it did not sufficiently plead material facts, legal consequences, or clearly identify which property was alleged to be subject of the claim; Plaintiffs given leave to replead under s 37A of the Conveyancing Act with directions to clarify their case and allow further challenge to amendments.

Parties
First Plaintiff: Moustach Pty Ltd; Second Plaintiff: Moussa Moussa; Third Plaintiff: Salima Moussa; First Defendant: Arlette Takchi as executrix of the estate of the late Eddie Takchi; Second Defendant: Arlette Takchi; Third Defendant: DMRJ Pty Limited; Fourth Defendant: TBT Investments Pty Limited
Jurisdiction
Australia
Judgment Date
07 July 2015
Procedural Posture
Corporations List (equity Division) / Interlocutory Application—motion to Disallow Amendment to Pleading
Outcome
Paragraph 25 of Amended Statement of Claim struck out; Plaintiffs given leave to replead; costs order against Plaintiffs.
Legal Topics
Application to Disallow Amendments, Striking Out Pleadings, Summary Dismissal, Proper Pleading of Material Facts, Indefeasibility of Title, Claims Under S 37 a Conveyancing Act, Costs Orders
Practice and Procedure Application to Disallow Amendments Striking Out Pleadings Summary Dismissal Proper Pleading of Material Facts Indefeasibility of Title Claims Under S 37 a Conveyancing Act Costs Orders

Case Brief

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Parties

Moustach Pty Ltd

First Plaintiff

Moussa Moussa

Second Plaintiff

Salima Moussa

Third Plaintiff

Arlette Takchi as executrix of the estate of the late Eddie Takchi

First Defendant

Arlette Takchi

Second Defendant

DMRJ Pty Limited

Third Defendant

TBT Investments Pty Limited

Fourth Defendant

Procedural Posture

Corporations List (equity Division) / Interlocutory Application—motion to Disallow Amendment to Pleading

Legal Issues

  1. 1 Whether paragraph 25 of the Amended Statement of Claim should be struck out
  2. 2 Whether the amended pleading sufficiently pleads elements to exclude indefeasibility under s 42 of the Real Property Act
  3. 3 Whether to disallow the amendment under Uniform Civil Procedure Rules 2005

Ratio Decidendi

Paragraph 25 of the Amended Statement of Claim was struck out because it did not sufficiently plead material facts, legal consequences, or clearly identify which property was alleged to be subject of the claim; Plaintiffs given leave to replead under s 37A of the Conveyancing Act with directions to clarify their case and allow further challenge to amendments.

Court Disposition

Paragraph 25 of Amended Statement of Claim struck out; Plaintiffs given leave to replead; costs order against Plaintiffs.

Orders

  • Paragraph 25 of Amended Statement of Claim filed 15 June 2015 be struck out.
  • Plaintiffs have leave to file and serve Further Amended Statement of Claim repleading claim under s 37A Conveyancing Act, to be filed/served by 4pm, 13 July 2015.