Krajovska v Krajovska & Ors [2011] NSWSC 906

Krajovska v Krajovska & Ors [2011] NSWSC 906

Paragraphs 79-80 of the Defence were struck out because allegations concerning a separate transfer of Macedonian properties to the Fourth Defendant could not answer the Plaintiff's claims against the First, Second and Third Defendants concerning dealings with two Australian properties. Leave to file the Amended Statement of Cross-Claim was refused because the pressed allegations concerning Macedonian properties were embarrassing, conclusory, did not plead material facts establishing undue influence or unconscionability, and were incapable of supporting the relief sought against the Fourth Defendant; the unpressed trust allegations were also deficient in their pleading.

Jurisdiction
Australia
Judgment Date
26 July 2011
Procedural Posture
Interlocutory Applications in Equity Division Proceedings Seeking Equitable Remedies in Respect of the Sale of a Property at Wetherill Park and a Farm at Buxton / At the Commencement of the Hearing, on Applications to Strike Out Paragraphs 79 80 of the Defence and for Leave to File an Amended Statement of Cross Claim
Outcome
Paragraphs 79-80 of the Defence were struck out; leave to file the Amended Statement of Cross-Claim was refused; costs were ordered on the ordinary basis.
Legal Topics
['strike Out of Pleading' 'leave to Amend Cross Claim' 'case Management' 'resulting Trust' 'undue Influence' 'unconscionability' 'costs']
['civil Procedure' 'equity' 'property'] ['strike Out of Pleading' 'leave to Amend Cross Claim' 'case Management' 'resulting Trust' 'undue Influence' 'unconscionability' 'costs']

Case Brief

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Procedural Posture

Interlocutory Applications in Equity Division Proceedings Seeking Equitable Remedies in Respect of the Sale of a Property at Wetherill Park and a Farm at Buxton / At the Commencement of the Hearing, on Applications to Strike Out Paragraphs 79 80 of the Defence and for Leave to File an Amended Statement of Cross Claim

Legal Issues

  1. 1 ['Whether paragraphs 79-80 of the Defence filed by the First, Second and Third Defendants should be struck out under r 14.28 of the Uniform Civil Procedure Rules.' 'Whether the First, Second and Third Defendants should be granted leave to file an Amended Statement of Cross-Claim.' 'Whether the proposed Amended Statement of Cross-Claim disclosed a properly arguable cause of action or would cause prejudice, embarrassment or delay.' 'Whether ordinary or indemnity costs should be ordered.']

Ratio Decidendi

Paragraphs 79-80 of the Defence were struck out because allegations concerning a separate transfer of Macedonian properties to the Fourth Defendant could not answer the Plaintiff's claims against the First, Second and Third Defendants concerning dealings with two Australian properties. Leave to file the Amended Statement of Cross-Claim was refused because the pressed allegations concerning Macedonian properties were embarrassing, conclusory, did not plead material facts establishing undue influence or unconscionability, and were incapable of supporting the relief sought against the Fourth Defendant; the unpressed trust allegations were also deficient in their pleading.

Court Disposition

Paragraphs 79-80 of the Defence were struck out; leave to file the Amended Statement of Cross-Claim was refused; costs were ordered on the ordinary basis.

Orders

  • ['Paragraphs 79-80 of the Defence be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules.' 'Leave to the First, Second and Third Defendants to file their Amended Cross-Claim is refused.' "The First, Second and Third Defendants pay the Fourth Defendant's costs of and incidental to the application to...