Skelton v Foggo (No 3) [2023] NSWSC 72

Skelton v Foggo (No 3) [2023] NSWSC 72

The notice of motion dated 9 January 2023 was dismissed because it did not comply with Dhanji J's Order 3: it sought different orders from those contemplated, it was filed and served about two months late, and the proposed new statement of claim came nowhere near being a compliant pleading and suffered from the same defects as the pleading previously struck out.

Jurisdiction
Australia
Judgment Date
10 February 2023
Procedural Posture
Civil Procedure Application to File a Fresh Statement of Claim / Leave to Amend / Notice of Motion Dated 9 January 2023 After the Plaintiff's Statement of Claim Had Been Struck Out as Against the Third Defendant
Outcome
The notice of motion dated 9 January 2023 was dismissed, but the applicant was given a further opportunity to file and serve a notice of motion seeking leave to file an amended statement of claim.
Legal Topics
['application to File Fresh Statement of Claim' 'leave to Amend' 'striking Out Pleadings' 'non Compliant Pleading']
['civil Procedure'] ['application to File Fresh Statement of Claim' 'leave to Amend' 'striking Out Pleadings' 'non Compliant Pleading']

Case Brief

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Procedural Posture

Civil Procedure Application to File a Fresh Statement of Claim / Leave to Amend / Notice of Motion Dated 9 January 2023 After the Plaintiff's Statement of Claim Had Been Struck Out as Against the Third Defendant

Legal Issues

  1. 1 ["Whether the applicant's notice of motion dated 9 January 2023 complied with Order 3 made by Dhanji J on 27 September 2022." 'Whether the proposed new statement of claim was a compliant pleading disclosing a cause of action against the third defendant.' 'Whether the applicant should be given another opportunity to file a motion seeking leave to file an amended statement of claim.']

Ratio Decidendi

The notice of motion dated 9 January 2023 was dismissed because it did not comply with Dhanji J's Order 3: it sought different orders from those contemplated, it was filed and served about two months late, and the proposed new statement of claim came nowhere near being a compliant pleading and suffered from the same defects as the pleading previously struck out.

Court Disposition

The notice of motion dated 9 January 2023 was dismissed, but the applicant was given a further opportunity to file and serve a notice of motion seeking leave to file an amended statement of claim.

Orders

  • ['The notice of motion dated 9 January 2023 is dismissed.' 'If the applicant wishes to file a fresh statement of claim he is to file and serve a notice of motion on or before 5 April 2023.' 'The notice of motion must seek leave to file an amended statement of claim and be accompanied by a proposed version of this...