Built NSW v Evolvebuilt Contracting [2014] NSWSC 255

Built NSW v Evolvebuilt Contracting [2014] NSWSC 255

The strike-out application was not entertained because the pleaded claims against the first and third defendants arose from the same factual matrix and would involve investigation of the same substratum of facts, so striking out the s1324(10) aspect would not substantially reduce the evidence, preparation for hearing, or the burden of the trial; Practice Note SC Eq 3 therefore warranted declining to entertain the application.

Jurisdiction
Australia
Judgment Date
13 March 2014
Procedural Posture
Procedural and Other Rulings / Notice of Motion to Strike Out a Prayer for Relief and Related Paragraphs; Application to Amend Summons
Outcome
Declined to entertain the strike-out application; notice of motion stood over to the hearing; plaintiff granted leave to amend the summons.
Legal Topics
['strike Out Application' 'practice Note SC Eq 3' 'section 1324(10) of the Corporations Act 2001 (cth)' "directors' Duties" 'misleading or Deceptive Conduct' 'fraud']
['civil Procedure' 'corporations Law' 'building and Construction'] ['strike Out Application' 'practice Note SC Eq 3' 'section 1324(10) of the Corporations Act 2001 (cth)' "directors' Duties" 'misleading or Deceptive Conduct' 'fraud']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Notice of Motion to Strike Out a Prayer for Relief and Related Paragraphs; Application to Amend Summons

Legal Issues

  1. 1 ["Whether the Court should entertain the third defendant's application to strike out part of the plaintiff's proceedings under Practice Note SC Eq 3." "Whether striking out the plaintiff's s1324(10) claim would substantially reduce the burden of preparing for trial or the burden of the trial itself." 'Whether the plaintiff should be granted leave to amend its summons to claim injunctive relief against the third defendant.']

Ratio Decidendi

The strike-out application was not entertained because the pleaded claims against the first and third defendants arose from the same factual matrix and would involve investigation of the same substratum of facts, so striking out the s1324(10) aspect would not substantially reduce the evidence, preparation for hearing, or the burden of the trial; Practice Note SC Eq 3 therefore warranted declining to entertain the application.

Court Disposition

Declined to entertain the strike-out application; notice of motion stood over to the hearing; plaintiff granted leave to amend the summons.

Orders

  • ['Decline to entertain the notice of motion.' 'Stand the notice of motion over to the hearing of the matter, with costs to be in the discretion of the judge who hears it.' "On the undertaking of the plaintiff's solicitor to pay any filing fee that may be chargeable, grant the plaintiff leave to amend its summons and...