Bruce Clyde BAILEY & Anor v Arnold Neil Bailey & Ors [2002] NSWSC 1168

Bruce Clyde BAILEY & Anor v Arnold Neil Bailey & Ors [2002] NSWSC 1168

Because the mediation agreement made no specific reference to immediate distribution on sale of Hazeldene and the estate administration was not shown or pleaded to be complete, paragraph 19 and paragraphs 20 to 29 could not stand in their present form and required repleading. The claims for damages in paragraphs 35 and 36 were not struck out because an alleged breach of contract was prima facie arguable and damages, including special damages, may be available, although duress must be specifically pleaded if relied upon. Paragraphs 46 to 48 were not struck out because the plaintiffs had an arguable case that the second partnership proceedings breached the mediation agreement release, and...

Jurisdiction
Australia
Judgment Date
09 December 2002
Procedural Posture
Equity Proceedings Concerning Estate, Partnership and Mediation Agreement Disputes / First Defendant's Notice of Motion to Strike Out Paragraphs of the Plaintiffs' Statement of Claim
Outcome
First defendant's strike-out application allowed in part; paragraphs 19 and 20 to 29 struck out with leave to replead, other strike-out relief declined, leave to amend and to file and serve a cross-claim granted, and each party ordered to pay their own costs of the application.
Legal Topics
['strike Out' 'failure to Disclose a Reasonable Cause of Action' 'unadministered Estate' 'mediation Agreement' 'breach of Contract' 'damages' 'special Damages' 'duress' 'cross Claim']
['equity' 'succession' 'contract' 'civil Procedure' 'partnership'] ['strike Out' 'failure to Disclose a Reasonable Cause of Action' 'unadministered Estate' 'mediation Agreement' 'breach of Contract' 'damages' 'special Damages' 'duress' 'cross Claim']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Estate, Partnership and Mediation Agreement Disputes / First Defendant's Notice of Motion to Strike Out Paragraphs of the Plaintiffs' Statement of Claim

Legal Issues

  1. 1 ['Whether paragraph 19 of the Statement of Claim disclosed a reasonable cause of action by pleading an immediate distribution entitlement under a mediation agreement while the deceased estate was unadministered.' 'Whether paragraphs 20 to 29, alleging breach of the mediation agreement in relation to estate assets, could stand without pleading completion of administration of the estate.' 'Whether damages pleaded in paragraphs 35 and 36 for alleged breach of the mediation agreement were recoverable or should be struck out.' 'Whether duress or coercion needed to be specifically pleaded if relied upon by the plaintiffs.' 'Whether paragraphs 46 to 48 concerning the second partnership proceedings should be struck out or addressed by cross-claim.']

Ratio Decidendi

Because the mediation agreement made no specific reference to immediate distribution on sale of Hazeldene and the estate administration was not shown or pleaded to be complete, paragraph 19 and paragraphs 20 to 29 could not stand in their present form and required repleading. The claims for damages in paragraphs 35 and 36 were not struck out because an alleged breach of contract was prima facie arguable and damages, including special damages, may be available, although duress must be specifically pleaded if relied upon. Paragraphs 46 to 48 were not struck out because the plaintiffs had an arguable case that the second partnership proceedings breached the mediation agreement release, and...

Court Disposition

First defendant's strike-out application allowed in part; paragraphs 19 and 20 to 29 struck out with leave to replead, other strike-out relief declined, leave to amend and to file and serve a cross-claim granted, and each party ordered to pay their own costs of the application.

Orders

  • ['Paragraph 19 struck out with leave to replead.' 'Paragraphs 20 to 29 struck out with leave to replead.' 'Leave granted to plaintiffs to amend the Statement of Claim.' 'No order in relation to paragraph 37.' 'Grant leave to plaintiffs to file and serve a cross-claim in the second partnership proceedings.' 'Each...