Vicharra v Ford & Ors. [2023] NSWSC 458

Vicharra v Ford & Ors. [2023] NSWSC 458

The amended statement of claim was not easy to follow, lacked numbered paragraphs, dates and a coherent timeline, and did not coherently plead material facts or legal claims. At a minimum, it had a tendency to cause prejudice, embarrassment or delay in the proceedings under r 14.28(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), so it was struck out as against the second defendant. The Court declined to dismiss the proceedings because it could not exclude the possibility that the plaintiff had a claim capable of being advanced and because, absent a contrary order, s 91 of the Civil Procedure Act 2005 (NSW) would allow further proceedings to be filed.

Jurisdiction
Australia
Judgment Date
02 May 2023
Procedural Posture
Civil Proceedings in the Supreme Court of New South Wales, Common Law Division / Second Defendant's Notice of Motion to Strike Out the Amended Statement of Claim or Dismiss the Proceedings
Outcome
Amended statement of claim struck out as against the second defendant; dismissal of the proceedings not ordered.
Legal Topics
['pleadings' 'strike Out' 'reasonable Cause of Action' 'prejudice, Embarrassment or Delay' 'summary Dismissal']
['civil Procedure'] ['pleadings' 'strike Out' 'reasonable Cause of Action' 'prejudice, Embarrassment or Delay' 'summary Dismissal']

Case Brief

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Procedural Posture

Civil Proceedings in the Supreme Court of New South Wales, Common Law Division / Second Defendant's Notice of Motion to Strike Out the Amended Statement of Claim or Dismiss the Proceedings

Legal Issues

  1. 1 ['Whether the amended statement of claim disclosed a reasonable cause of action against the second defendant.' 'Whether the amended statement of claim had a tendency to cause prejudice, embarrassment or delay in the proceedings.' 'Whether the proceedings should be dismissed under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) or the pleading struck out under r 14.28(1).']

Ratio Decidendi

The amended statement of claim was not easy to follow, lacked numbered paragraphs, dates and a coherent timeline, and did not coherently plead material facts or legal claims. At a minimum, it had a tendency to cause prejudice, embarrassment or delay in the proceedings under r 14.28(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), so it was struck out as against the second defendant. The Court declined to dismiss the proceedings because it could not exclude the possibility that the plaintiff had a claim capable of being advanced and because, absent a contrary order, s 91 of the Civil Procedure Act 2005 (NSW) would allow further proceedings to be filed.

Court Disposition

Amended statement of claim struck out as against the second defendant; dismissal of the proceedings not ordered.

Orders

  • ['Order that, as against the second defendant, the amended statement of claim filed 14 October 2022 be struck out pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW).' "Order that the plaintiff pay the second defendant's costs of, and incidental to, the notice of motion dated 28 November 2022, and...