Obeid v Ipp (No. 2) [2015] NSWSC 1852

Obeid v Ipp (No. 2) [2015] NSWSC 1852

The proposed alternative pleading in section A6 was not precluded by the common law rule because the Defendants did not show, and there was nothing from which to infer, that the Plaintiffs pleaded a matter they knew to be false or untruthful. Unlike Brailsford, it was not shown that the actual facts must be within the Plaintiffs' knowledge. Although r 14.18 is qualified by the common law, the qualification did not apply on these facts, and the First and Second Defendants suffered no particular disadvantage from the alternative pleading.

Jurisdiction
Australia
Judgment Date
04 December 2015
Procedural Posture
Common Law Proceeding; Application for Leave to Amend Statement of Claim / Interlocutory Application for Leave to Amend Pleading
Outcome
The Plaintiffs were given leave to plead and rely on section A6 of the proposed Amended Statement of Claim, with the modification to paragraph 158 that it be expressed as further and in the alternative.
Legal Topics
['pleadings' 'amendment of Statement of Claim' 'alternative Pleading' 'inconsistent Allegations of Fact']
['civil Procedure'] ['pleadings' 'amendment of Statement of Claim' 'alternative Pleading' 'inconsistent Allegations of Fact']

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

Common Law Proceeding; Application for Leave to Amend Statement of Claim / Interlocutory Application for Leave to Amend Pleading

Legal Issues

  1. 1 ['Whether the plaintiffs should be given leave to plead and rely on section A6 of the proposed Amended Statement of Claim.' 'Whether the proposed pleading in section A6 was an impermissible inconsistent pleading because one of the alternative factual allegations must be known by the plaintiffs to be false.' 'Whether r 14.18 of the Uniform Civil Procedure Rules 2005 (NSW) is qualified by the common law rule against knowingly pleading false inconsistent alternatives.']

Ratio Decidendi

The proposed alternative pleading in section A6 was not precluded by the common law rule because the Defendants did not show, and there was nothing from which to infer, that the Plaintiffs pleaded a matter they knew to be false or untruthful. Unlike Brailsford, it was not shown that the actual facts must be within the Plaintiffs' knowledge. Although r 14.18 is qualified by the common law, the qualification did not apply on these facts, and the First and Second Defendants suffered no particular disadvantage from the alternative pleading.

Court Disposition

The Plaintiffs were given leave to plead and rely on section A6 of the proposed Amended Statement of Claim, with the modification to paragraph 158 that it be expressed as further and in the alternative.

Orders

  • ['With the modification to paragraph 158 referred to earlier the Plaintiffs are given leave to plead and rely on the pleading contained in section A6 of the proposed Amended Statement of Claim.']