Hill End Gold Ltd v First Tiffany Resource Corp [2008] NSWSC 1412

Hill End Gold Ltd v First Tiffany Resource Corp [2008] NSWSC 1412

The defence was struck out because it was materially defective: it failed to state the effect of documents referred to in the pleading as required by UCPR r 14.9, instead merely relying on them for their force and effect, and it needed to plead material facts not arising out of the statement of claim on which the defendant would rely, as required by UCPR r 14.14(2)(c).

Jurisdiction
Australia
Judgment Date
04 December 2008
Procedural Posture
Procedural and Other Rulings / Application for an Order Striking Out the Defendant's Defence
Outcome
Defence struck out with leave to replead.
Legal Topics
['defences' 'strike Out of Defence' 'specific Pleading of Matters Likely to Surprise' 'facts Not Arising Out of Preceding Pleading' 'effect of Documents Referred to in Pleadings' 'pregnant Negatives' 'uniform Civil Procedure Rules Rr 14.9, 14.10, 14.14']
['civil Procedure' 'pleadings'] ['defences' 'strike Out of Defence' 'specific Pleading of Matters Likely to Surprise' 'facts Not Arising Out of Preceding Pleading' 'effect of Documents Referred to in Pleadings' 'pregnant Negatives' 'uniform Civil Procedure Rules Rr 14.9, 14.10, 14.14']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Application for an Order Striking Out the Defendant's Defence

Legal Issues

  1. 1 ['Whether the defence complied with UCPR r 14.14(2) by specifically pleading matters that may take the opposite party by surprise or raise matters of fact not arising out of the preceding pleading.' 'Whether UCPR r 14.14 prevails over the more general UCPR r 14.10 where facts must be pleaded specifically even if the burden of disproving them lies on the opposite party.' 'Whether a pleading that states it relies on the terms of a document for their force and effect complies with UCPR r 14.9.' 'Whether particulars should be ordered of denials that amount to pregnant negatives.']

Ratio Decidendi

The defence was struck out because it was materially defective: it failed to state the effect of documents referred to in the pleading as required by UCPR r 14.9, instead merely relying on them for their force and effect, and it needed to plead material facts not arising out of the statement of claim on which the defendant would rely, as required by UCPR r 14.14(2)(c).

Court Disposition

Defence struck out with leave to replead.

Orders

  • ['The defence be struck out, with leave to replead.' 'Any amended defence be served by 11 December 2008.' "The defendant pay the plaintiff's costs of the motion." "Time for the service of the defendant's expert evidence be extended to 21 January 2009." 'The proceedings be adjourned to 6 February 2009 at 11.15am for...