Parisi Industries Bathroomware Pty Ltd v Franco Mincone [2004] NSWLC 8

Parisi Industries Bathroomware Pty Ltd v Franco Mincone [2004] NSWLC 8

Although the first pleaded cause of action disclosed at least one reasonable cause of action based on an alleged guarantee by the first and second defendants through Ms Pellegrini as agent or scribe, the Third Amended Statement of Claim as a whole was too confusing, self-contradictory and prejudicial to stand because its alternative causes of action and allegations about authority were inconsistent and insufficiently particularised. Cosmetic amendments would not cure the defects, so the pleading had to be struck out with leave to replead. The stay for want of jurisdiction was refused because the defendants had raised the objection too late after earlier steps including an arbitration and...

Jurisdiction
Australia
Judgment Date
04 March 2004
Procedural Posture
Civil / Defendants' Motion to Strike Out the Plaintiff's Third Amended Statement of Liquidated Claim and for a Stay of Proceedings
Outcome
The defendants' motion was granted to the extent that the Third Amended Statement of Claim was struck out for embarrassment, with costs and leave to file a fresh statement of claim; the application for a stay for lack of jurisdiction was refused.
Legal Topics
['strike Out Application' 'reasonable Cause of Action' 'embarrassing Pleadings' 'inconsistent Alternative Causes of Action' 'submission to Jurisdiction' 'local Court Jurisdiction']
['practice and Procedure' 'pleadings' 'courts and Jurisdiction'] ['strike Out Application' 'reasonable Cause of Action' 'embarrassing Pleadings' 'inconsistent Alternative Causes of Action' 'submission to Jurisdiction' 'local Court Jurisdiction']

Case Brief

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Procedural Posture

Civil / Defendants' Motion to Strike Out the Plaintiff's Third Amended Statement of Liquidated Claim and for a Stay of Proceedings

Legal Issues

  1. 1 ['Whether the Third Amended Statement of Claim disclosed a reasonable cause of action.' 'Whether the Third Amended Statement of Claim was confusing, internally inconsistent, contradictory and embarrassing.' 'Whether the Local Court had jurisdiction where the defendants asserted that the cause of action arose in Victoria and the defendants resided in Victoria.' 'Whether the defendants had submitted to the jurisdiction by not contesting jurisdiction earlier.']

Ratio Decidendi

Although the first pleaded cause of action disclosed at least one reasonable cause of action based on an alleged guarantee by the first and second defendants through Ms Pellegrini as agent or scribe, the Third Amended Statement of Claim as a whole was too confusing, self-contradictory and prejudicial to stand because its alternative causes of action and allegations about authority were inconsistent and insufficiently particularised. Cosmetic amendments would not cure the defects, so the pleading had to be struck out with leave to replead. The stay for want of jurisdiction was refused because the defendants had raised the objection too late after earlier steps including an arbitration and...

Court Disposition

The defendants' motion was granted to the extent that the Third Amended Statement of Claim was struck out for embarrassment, with costs and leave to file a fresh statement of claim; the application for a stay for lack of jurisdiction was refused.

Orders

  • ['The Third Amended Statement of Claim will be struck out.' "The plaintiff to pay the defendants' costs of disposal of the motion." 'The plaintiff to have leave to file a fresh Statement of Claim within 21 days.' 'Liberty to apply on 7 days notice.']