BBB Constructions Pty Limited v Burn [2008] NSWSC 1356

BBB Constructions Pty Limited v Burn [2008] NSWSC 1356

Leave to file the proposed amended statement of claim was refused because the pleading still failed adequately to define the possessory rights asserted by each plaintiff, the acts of interference with those rights, the damage caused, and the material facts supporting aspects of the declaratory relief; however, the defects were pleading defects and the plaintiffs were given leave to replead.

Jurisdiction
Australia
Judgment Date
17 December 2008
Procedural Posture
Application for Leave to File an Amended Statement of Claim, Following Defendants' Strike Out Application / Interlocutory Application
Outcome
The application for leave to file the amended statement of claim was dismissed with leave to replead.
Legal Topics
['leave to Amend Pleading' 'strike Out for Failure to Plead Material Facts' 'trespass to Land' 'legal Right to Possession' 'validity of Emergency Directions' 'proper Parties to Administrative Law Relief']
['civil Procedure' 'torts' 'administrative Law'] ['leave to Amend Pleading' 'strike Out for Failure to Plead Material Facts' 'trespass to Land' 'legal Right to Possession' 'validity of Emergency Directions' 'proper Parties to Administrative Law Relief']

Case Brief

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Procedural Posture

Application for Leave to File an Amended Statement of Claim, Following Defendants' Strike Out Application / Interlocutory Application

Legal Issues

  1. 1 ['Whether leave should be granted to file the proposed amended statement of claim.' 'Whether the proposed amended pleading adequately identified the basis on which each plaintiff had a legal right to possession for a trespass claim.' 'Whether the pleading adequately identified the relevant interference with possession and the damage caused by that interference.' 'Whether the contaminated fill allegation could be maintained as part of damages for trespass.' 'Whether the claim for damages in respect of the Wyndham Street decision could form part of a trespass claim.' 'Whether prayers for declaratory relief concerning directions and authority under the State Emergency and Rescue Management Act 1989 were supported by material facts in the pleading.' 'Whether relevant decision-makers should be named as parties where administrative law declaratory relief was sought.']

Ratio Decidendi

Leave to file the proposed amended statement of claim was refused because the pleading still failed adequately to define the possessory rights asserted by each plaintiff, the acts of interference with those rights, the damage caused, and the material facts supporting aspects of the declaratory relief; however, the defects were pleading defects and the plaintiffs were given leave to replead.

Court Disposition

The application for leave to file the amended statement of claim was dismissed with leave to replead.

Orders

  • ['The application for leave to file the amended statement of claim is dismissed with leave to replead.' "I order the plaintiffs to pay the defendants' costs of the application, not including the costs occasioned by the requests for particulars and the disputes over the response to those requests."]