Chinawind Entertainment Pty Ltd & Ors v Shen L. [1995] FCA 667

Chinawind Entertainment Pty Ltd & Ors v Shen L. [1995] FCA 667

The respondents' further amended defence had to be struck out because it was identical to an earlier amended defence that did not comply with the rules. Although judgment for the applicants and transfer to Brisbane were refused at this early stage, the respondents were granted leave to file a further amended defence only in the form annexed to Ms Cato's affidavit, excluding paragraph 5 and the counterclaim in paragraph 6 because those parts were grossly inadequate and not in compliance with the rules. The respondents were ordered to pay the applicants' costs of both motions on an indemnity basis.

Jurisdiction
Australia
Judgment Date
25 August 1995
Procedural Posture
Application by Notice of Motion Concerning Pleadings / Interlocutory Motions to Strike Out Further Amended Defence, Enter Judgment, Transfer Proceedings, and Obtain Leave to File a Further Amended Defence
Outcome
The applicants' motion to strike out the further amended defence succeeded, but judgment and transfer relief were refused; the respondents were granted limited leave to file a further amended defence excluding paragraph 5 and the counterclaim in paragraph 6; the respondents were ordered to pay the applicants' costs...
Legal Topics
['strike Out of Defence' 'leave to Amend Defence' 'pleadings' 'counterclaim' 'particulars' 'indemnity Costs' 'transfer of Proceedings']
['practice and Procedure'] ['strike Out of Defence' 'leave to Amend Defence' 'pleadings' 'counterclaim' 'particulars' 'indemnity Costs' 'transfer of Proceedings']

Case Brief

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Procedural Posture

Application by Notice of Motion Concerning Pleadings / Interlocutory Motions to Strike Out Further Amended Defence, Enter Judgment, Transfer Proceedings, and Obtain Leave to File a Further Amended Defence

Legal Issues

  1. 1 ["Whether the respondents' further amended defence should be struck out because it was in identical terms with an earlier defence that did not comply with the rules." 'Whether judgment should be entered for the applicants at this stage of the proceedings.' 'Whether the respondents should be granted leave to file another further amended defence and counterclaim.' 'Whether the respondents should provide or receive further particulars.' "Whether the respondents should pay the applicants' costs of the motions on an indemnity basis."]

Ratio Decidendi

The respondents' further amended defence had to be struck out because it was identical to an earlier amended defence that did not comply with the rules. Although judgment for the applicants and transfer to Brisbane were refused at this early stage, the respondents were granted leave to file a further amended defence only in the form annexed to Ms Cato's affidavit, excluding paragraph 5 and the counterclaim in paragraph 6 because those parts were grossly inadequate and not in compliance with the rules. The respondents were ordered to pay the applicants' costs of both motions on an indemnity basis.

Court Disposition

The applicants' motion to strike out the further amended defence succeeded, but judgment and transfer relief were refused; the respondents were granted limited leave to file a further amended defence excluding paragraph 5 and the counterclaim in paragraph 6; the respondents were ordered to pay the applicants' costs...

Orders

  • ["Time for service of both the applicants' and the respondents' motions be abridged to make them returnable before the Court on 18 August 1995." 'Leave be granted to the respondents to file a further amended defence in the form annexed to the affidavit of Caron Jo-Ann Cato sworn on 17 August 1995 but excluding...