Mitchell v Moore [2015] NSWSC 180

Mitchell v Moore [2015] NSWSC 180

The statement of claim was struck out because it pleaded conclusions of law rather than the material facts necessary to identify a reasonable cause of action for a charge over the defendant's property. Although the plaintiff had sufficiently identified claimed payments and general circumstances, the alleged agreement or agreements, their terms, and the conversations said to constitute them were not sufficiently pleaded, so the defendant could not identify the case she had to meet. The claim was not dismissed because there was at least some basis to conclude that the plaintiff had a triable case.

Jurisdiction
Australia
Judgment Date
09 March 2015
Procedural Posture
Civil Procedure Notice of Motion to Strike Out Statement of Claim / Interlocutory Motion
Outcome
Statement of claim struck out; plaintiff given leave to file and serve a further statement of claim; plaintiff ordered to pay the defendant's costs on an indemnity basis.
Legal Topics
['strike Out' 'no Reasonable Cause of Action' 'embarrassing Pleadings' 'particulars' 'indemnity Costs']
['civil Procedure' 'pleadings' 'costs'] ['strike Out' 'no Reasonable Cause of Action' 'embarrassing Pleadings' 'particulars' 'indemnity Costs']

Case Brief

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Procedural Posture

Civil Procedure Notice of Motion to Strike Out Statement of Claim / Interlocutory Motion

Legal Issues

  1. 1 ["Whether the statement of claim disclosed a reasonable cause of action for a charge over the defendant's property." 'Whether the statement of claim should be struck out as having a tendency to cause prejudice, embarrassment or delay.' 'Whether the proceedings should be dismissed rather than the statement of claim struck out.' 'Whether indemnity costs should be ordered.']

Ratio Decidendi

The statement of claim was struck out because it pleaded conclusions of law rather than the material facts necessary to identify a reasonable cause of action for a charge over the defendant's property. Although the plaintiff had sufficiently identified claimed payments and general circumstances, the alleged agreement or agreements, their terms, and the conversations said to constitute them were not sufficiently pleaded, so the defendant could not identify the case she had to meet. The claim was not dismissed because there was at least some basis to conclude that the plaintiff had a triable case.

Court Disposition

Statement of claim struck out; plaintiff given leave to file and serve a further statement of claim; plaintiff ordered to pay the defendant's costs on an indemnity basis.

Orders

  • ['That the whole of the statement of claim be struck out.' 'That the plaintiff have leave to file and serve a further statement of claim on or before 25 March 2015.' "That the plaintiff pay the defendant's costs of the proceedings including the costs of the motion on an indemnity basis."]