Simson v Wotif [2013] NSWSC 124

Simson v Wotif [2013] NSWSC 124

The alleged oral term is not struck out at this interlocutory stage because, construing the subject matter of the entire agreement clause, the plaintiffs' position is not unarguable; thus, a summary determination is inappropriate. However, the claims based on estoppel by convention are precluded by the parol evidence rule as affirmed by Retirement Services Australia and Johnson Matthey, in light of the entire agreement clause. The particulars of pleading in relation to the alleged oral term and the estoppel by representation are inadequate but may be remedied by further particulars and repleading. The amended statement of claim is struck out with leave to replead. Orders for summary...

Jurisdiction
Australia
Judgment Date
22 February 2013
Procedural Posture
Equity Proceedings (strike Out and Summary Judgment Application) / Interlocutory (determination of Amended Statement of Claim and Cross Claim Applications)
Outcome
Amended statement of claim struck out; leave granted to replead; cross-claim judgment refused; no order as to costs.
Legal Topics
['entire Agreement Clauses' 'parol Evidence Rule' 'estoppel by Representation' 'estoppel by Convention' 'pleading Standards (strike Out)' 'disclosure and Particulars' 'summary Judgment']
['contract Law' 'civil Procedure' 'equity'] ['entire Agreement Clauses' 'parol Evidence Rule' 'estoppel by Representation' 'estoppel by Convention' 'pleading Standards (strike Out)' 'disclosure and Particulars' 'summary Judgment']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceedings (strike Out and Summary Judgment Application) / Interlocutory (determination of Amended Statement of Claim and Cross Claim Applications)

Legal Issues

  1. 1 ['Whether an alleged oral term is precluded by an entire agreement clause' 'Whether estoppel by representation was sufficiently pleaded to disclose a reasonable cause of action' 'Whether estoppel by convention is excluded by the parol evidence rule in light of an entire agreement clause' 'Whether relevant paragraphs of the amended statement of claim or defence should be struck out' 'Whether particulars provided are sufficient at this stage of the proceedings']

Ratio Decidendi

The alleged oral term is not struck out at this interlocutory stage because, construing the subject matter of the entire agreement clause, the plaintiffs' position is not unarguable; thus, a summary determination is inappropriate. However, the claims based on estoppel by convention are precluded by the parol evidence rule as affirmed by Retirement Services Australia and Johnson Matthey, in light of the entire agreement clause. The particulars of pleading in relation to the alleged oral term and the estoppel by representation are inadequate but may be remedied by further particulars and repleading. The amended statement of claim is struck out with leave to replead. Orders for summary...

Court Disposition

Amended statement of claim struck out; leave granted to replead; cross-claim judgment refused; no order as to costs.

Orders

  • ['The amended statement of claim is struck out.' 'Leave is given to replead in accordance with the judgment, by filing and serving a further amended statement of claim within 28 days.' 'The matter is to proceed in accordance with the rules thereafter.' 'No order as to the costs of the motion; each party to bear...