Wadhera v Tesoriero [2015] NSWSC 743

Wadhera v Tesoriero [2015] NSWSC 743

The cross claim was struck out because it did not plead a relevant term of the option agreement, any actionable representation or conduct, or any legal or logical connection between the alleged abrogation of the agreement and the claimed entitlement to recover the costs of pursuing development approval; it therefore failed to disclose a reasonable cause of action. The Court declined to dismiss the remaining proceedings in the defendant's absence and without material going to the possible factual merits of the cross claim.

Jurisdiction
Australia
Judgment Date
12 June 2015
Procedural Posture
Common Law Proceedings Concerning Possession of Land and a Cross Claim / Hearing of the Cross Claim; Application to Strike Out the Cross Claim Under UCPR 14.28
Outcome
Cross claim struck out, with liberty to file and serve an amended cross claim within 14 days; defendant ordered to pay the plaintiffs' costs; proceedings stood over for directions.
Legal Topics
['pleadings' 'cross Claim' 'strike Out Application' 'no Reasonable Cause of Action' 'option to Purchase Land' 'development Approval Costs']
['civil Procedure' 'property Law' 'contract Law' 'costs'] ['pleadings' 'cross Claim' 'strike Out Application' 'no Reasonable Cause of Action' 'option to Purchase Land' 'development Approval Costs']

Case Brief

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Procedural Posture

Common Law Proceedings Concerning Possession of Land and a Cross Claim / Hearing of the Cross Claim; Application to Strike Out the Cross Claim Under UCPR 14.28

Legal Issues

  1. 1 ["Whether the defendant's cross claim disclosed a reasonable cause of action within UCPR 14.28." 'Whether the cross claim should be dismissed under UCPR 13.4 rather than struck out.' 'Whether the plaintiffs should receive costs of the statement of claim proceedings and the hearing.']

Ratio Decidendi

The cross claim was struck out because it did not plead a relevant term of the option agreement, any actionable representation or conduct, or any legal or logical connection between the alleged abrogation of the agreement and the claimed entitlement to recover the costs of pursuing development approval; it therefore failed to disclose a reasonable cause of action. The Court declined to dismiss the remaining proceedings in the defendant's absence and without material going to the possible factual merits of the cross claim.

Court Disposition

Cross claim struck out, with liberty to file and serve an amended cross claim within 14 days; defendant ordered to pay the plaintiffs' costs; proceedings stood over for directions.

Orders

  • ['Order that the cross claim filed on 14 September 2014 be struck out.' 'Grant liberty to the defendant if so advised to file and serve an amended cross claim within 14 days.' 'Order that the defendant pay the plaintiffs costs of and incidental to the proceedings on the statement of claim and the costs of and...