Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2001] FCA 1494

Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2001] FCA 1494

The motion to strike out the amended cross-claim is dismissed because it has not been proven that the cross-claim discloses no reasonable cause of action or that such cause of action is not properly pleaded. It is arguable that a mortgagee may approach the Court for possession based on events of default as pleaded, and the absence of particularisation of the sum secured due to the nature of unliquidated damages does not warrant striking out the claim at this stage.

Jurisdiction
Australia
Judgment Date
23 August 2001
Procedural Posture
Motion (strike Out Application) in Civil Proceedings With Cross Claim / Interlocutory (motion to Strike Out Amended Cross Claim)
Outcome
Motion dismissed with costs.
Legal Topics
['mortgagee Rights' 'possession of Property' 'pleading Requirements' 'rectification' 'guarantees' 'defaults Under Securities' 'strike Out Applications']
['property Law' 'contract Law' 'civil Procedure'] ['mortgagee Rights' 'possession of Property' 'pleading Requirements' 'rectification' 'guarantees' 'defaults Under Securities' 'strike Out Applications']

Case Brief

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Procedural Posture

Motion (strike Out Application) in Civil Proceedings With Cross Claim / Interlocutory (motion to Strike Out Amended Cross Claim)

Legal Issues

  1. 1 ['Whether a mortgagee seeking possession must plead and particularise the sum secured and the state of account.' 'Whether the amended cross-claim discloses a reasonable cause of action for possession based on the terms of the securities and underlying contracts.' 'Whether the absence of particulars of the sum secured or quantum of damages in the cross-claim is a proper ground for striking out the cross-claim.']

Ratio Decidendi

The motion to strike out the amended cross-claim is dismissed because it has not been proven that the cross-claim discloses no reasonable cause of action or that such cause of action is not properly pleaded. It is arguable that a mortgagee may approach the Court for possession based on events of default as pleaded, and the absence of particularisation of the sum secured due to the nature of unliquidated damages does not warrant striking out the claim at this stage.

Court Disposition

Motion dismissed with costs.

Orders

  • ['The motion be dismissed.' "The cross-respondents pay the cross-claimants' costs of the motion."]