Di Palma v Chimmalee (No 2) [2019] NSWSC 1138

Di Palma v Chimmalee (No 2) [2019] NSWSC 1138

The plaintiffs may plead claims for moneys had and received in circumstances where the alleged benefit to the defendant is payment at their direction or to accounts under their control; actual receipt by the defendant need not be pleaded strictly as the sole form of receiving money for such claims. The proposed amendments are not so untenable as to warrant summary rejection and adequately identify the case to be met. Leave to amend should be granted, subject only to appropriate costs orders and not to restrictions on adducing evidence.

Jurisdiction
Australia
Judgment Date
03 September 2019
Procedural Posture
Civil (equity; Pleadings Amendment) / Interlocutory Application to Amend Statement of Claim
Outcome
Application granted
Legal Topics
['pleadings' 'amendment of Statements of Claim' 'moneys Had and Received' 'unjust Enrichment']
['civil Procedure'] ['pleadings' 'amendment of Statements of Claim' 'moneys Had and Received' 'unjust Enrichment']

Case Brief

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Procedural Posture

Civil (equity; Pleadings Amendment) / Interlocutory Application to Amend Statement of Claim

Legal Issues

  1. 1 ['Whether leave should be granted to amend the statement of claim to plead alternative claims for moneys had and received' 'Whether a claim for moneys had and received requires actual receipt of funds by the defendant or receipt at their direction is sufficient' 'Whether the amended pleading adequately pleads material facts as to the benefit received by the defendants' 'Whether the grant of leave to amend should be conditioned on plaintiffs not adducing further evidence in chief']

Ratio Decidendi

The plaintiffs may plead claims for moneys had and received in circumstances where the alleged benefit to the defendant is payment at their direction or to accounts under their control; actual receipt by the defendant need not be pleaded strictly as the sole form of receiving money for such claims. The proposed amendments are not so untenable as to warrant summary rejection and adequately identify the case to be met. Leave to amend should be granted, subject only to appropriate costs orders and not to restrictions on adducing evidence.

Court Disposition

Application granted

Orders

  • ['Grant the plaintiffs leave to file the amended statement of claim in the form served on 12 August 2019, noting the further particulars provided in submissions.' "Order the plaintiffs to pay the defendants' costs thrown away by the amendment of the statement of claim." 'Otherwise order that the costs of the...