Angius v Salier & Ors (No 2) [2019] NSWSC 682

Angius v Salier & Ors (No 2) [2019] NSWSC 682

Leave to file the proposed further amended statement of claim was refused because the proposed GST contribution and restitution claims were not adequately pleaded or particularised. The pleading failed to plead and particularise with clarity and precision whether, when, from which accounts and to what extent the plaintiff paid the GST liability from his own funds, and contained ambiguity between the asserted payment of $527,930 and the claim only to the extent monies were paid from his own funds. The restitution claim was also inadequately pleaded. The proposed claim was a new cause of action brought out of time and did not arise from the same or substantially the same facts as an...

Jurisdiction
Australia
Judgment Date
07 June 2019
Procedural Posture
Equity Proceedings; Application for Leave to Amend Pleading / On the Papers After Separate Questions Judgment and Directions
Outcome
Plaintiff's application dismissed; leave to amend and file the proposed further amended statement of claim refused; costs ordered against the plaintiff with unpaid first defendant costs otherwise payable from the estate on an indemnity basis.
Legal Topics
['leave to Amend Pleading' 'further Amended Statement of Claim' 'contribution' 'restitution and Unjust Enrichment' 'gst Liability' 'particulars' 'case Management' 'limitation Period']
['civil Procedure' 'equity' 'limitation of Actions' 'partnership' 'taxation'] ['leave to Amend Pleading' 'further Amended Statement of Claim' 'contribution' 'restitution and Unjust Enrichment' 'gst Liability' 'particulars' 'case Management' 'limitation Period']

Case Brief

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Procedural Posture

Equity Proceedings; Application for Leave to Amend Pleading / On the Papers After Separate Questions Judgment and Directions

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file a further amended statement of claim to include a claim for contribution and restitution in respect of GST and penalty amounts allegedly incurred jointly with the deceased and paid by him to the ATO.' 'Whether the proposed GST liability contribution and restitution claims were adequately pleaded and particularised, including whether the plaintiff pleaded and particularised payment from his own funds.' 'Whether the proposed amendments could be permitted under s 65(2) of the Civil Procedure Act 2005 (NSW) after expiry of the limitation period.' 'Whether prejudice, delay, case management considerations and the need for further evidence warranted refusal of leave.']

Ratio Decidendi

Leave to file the proposed further amended statement of claim was refused because the proposed GST contribution and restitution claims were not adequately pleaded or particularised. The pleading failed to plead and particularise with clarity and precision whether, when, from which accounts and to what extent the plaintiff paid the GST liability from his own funds, and contained ambiguity between the asserted payment of $527,930 and the claim only to the extent monies were paid from his own funds. The restitution claim was also inadequately pleaded. The proposed claim was a new cause of action brought out of time and did not arise from the same or substantially the same facts as an...

Court Disposition

Plaintiff's application dismissed; leave to amend and file the proposed further amended statement of claim refused; costs ordered against the plaintiff with unpaid first defendant costs otherwise payable from the estate on an indemnity basis.

Orders

  • ["Dismiss the plaintiff's application and refuse him leave to amend and file the proposed further amended statement of claim to include at paragraphs 38 to 52 a claim for contribution in respect of a GST liability." "The plaintiff to pay the first defendant's costs in relation to the plaintiff's application for...