Dart v Norwich Union Life Australia Limited (ACN 006 783 295) [2005] FCA 221

Dart v Norwich Union Life Australia Limited (ACN 006 783 295) [2005] FCA 221

The present statement of claim raised no issue not previously raised except the allegation of undue commercial pressure. The Full Court's prior decision established that further prosecution of claims arising out of the 1994 to 1998 dealings would be an abuse of process, and no serious attempt had been made to address the pleading shortcomings previously identified. The new undue commercial pressure allegation had not previously been pleaded, the explanation was inadequate, and it was probably a point only the company could take; the company had been in liquidation for years and was not taking the point. Proposed amendments could not save the proceeding. The statement of claim was...

Jurisdiction
Australia
Judgment Date
10 February 2005
Procedural Posture
Federal Court Proceeding Arising Out of Property Dealings Concerning Retail Premises and Lease Arrangements / Respondents' Motions to Strike Out the Statement of Claim and Dismiss or Stay the Proceedings; Applicants' Motion to Stay the Liquidation of the Company
Outcome
Statement of claim set aside; application dismissed; notice of motion dismissed; motion to stay liquidation dismissed; specified affidavits sealed; applicants ordered to pay respondents' costs.
Legal Topics
['strike Out' 'dismissal of Proceedings' 'abuse of Process' 'pleadings' 'unrepresented Litigants' 'stay of Liquidation' 'sealing Affidavits']
['civil Procedure' 'property Law' 'leases' 'corporations'] ['strike Out' 'dismissal of Proceedings' 'abuse of Process' 'pleadings' 'unrepresented Litigants' 'stay of Liquidation' 'sealing Affidavits']

Case Brief

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Procedural Posture

Federal Court Proceeding Arising Out of Property Dealings Concerning Retail Premises and Lease Arrangements / Respondents' Motions to Strike Out the Statement of Claim and Dismiss or Stay the Proceedings; Applicants' Motion to Stay the Liquidation of the Company

Legal Issues

  1. 1 ["Whether the applicants' statement of claim should be struck out and the proceeding dismissed or stayed as an abuse of process in light of prior litigation." 'Whether the applicants should be allowed to pursue an allegation of undue commercial pressure in connection with execution of the lease.' 'Whether proposed amendments to the statement of claim could save the proceeding.' 'Whether the motion to stay the liquidation of the company should be dismissed.' 'Whether affidavits filed by the applicants should be sealed.']

Ratio Decidendi

The present statement of claim raised no issue not previously raised except the allegation of undue commercial pressure. The Full Court's prior decision established that further prosecution of claims arising out of the 1994 to 1998 dealings would be an abuse of process, and no serious attempt had been made to address the pleading shortcomings previously identified. The new undue commercial pressure allegation had not previously been pleaded, the explanation was inadequate, and it was probably a point only the company could take; the company had been in liquidation for years and was not taking the point. Proposed amendments could not save the proceeding. The statement of claim was...

Court Disposition

Statement of claim set aside; application dismissed; notice of motion dismissed; motion to stay liquidation dismissed; specified affidavits sealed; applicants ordered to pay respondents' costs.

Orders

  • ['The statement of claim be set aside.' 'The application be dismissed.' 'The notice of motion be dismissed.' 'The motion to stay the liquidation of the company be dismissed.' 'The affidavits of the applicants filed on 25 November 2004, 17 January 2005 and two affidavits filed on 1 February 2005 be sealed up and not...