Gould v Day & Anor [2002] NSWSC 492

Gould v Day & Anor [2002] NSWSC 492

The statement of claim was so deficient that it could not remain on foot: it failed to identify the plaintiffs, failed to identify any cause of action or material facts supporting one, and created prejudice and embarrassment by making it unclear what case the defendants had to meet. Because the pleading did not permit determination of whether any claim was one for personal injury or wrong preserved to the bankrupt first plaintiff by s 116(2)(g) of the Bankruptcy Act, the proper order was to strike out the statement of claim under Pt 15 r 26 rather than dismiss the action under Pt 13 r 5.

Jurisdiction
Australia
Judgment Date
03 June 2002
Procedural Posture
Notice of Motion in Common Law Division Proceedings / Application to Strike Out Statement of Claim, or Alternatively for Security for Costs
Outcome
Statement of claim struck out; first plaintiff ordered to pay the defendants' costs of the motion.
Legal Topics
['strike Out of Pleadings' 'reasonable Cause of Action' 'prejudice or Embarrassment in Pleadings' "bankrupt Plaintiff's Right to Sue" 'security for Costs']
['civil Procedure' 'bankruptcy'] ['strike Out of Pleadings' 'reasonable Cause of Action' 'prejudice or Embarrassment in Pleadings' "bankrupt Plaintiff's Right to Sue" 'security for Costs']

Case Brief

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Procedural Posture

Notice of Motion in Common Law Division Proceedings / Application to Strike Out Statement of Claim, or Alternatively for Security for Costs

Legal Issues

  1. 1 ['Whether the statement of claim should be struck out under Pt 15 r 26 because it disclosed no reasonable cause of action or tended to cause prejudice or embarrassment.' "Whether the first plaintiff's bankruptcy prevented him from continuing the proceedings because any right of action vested in the Official Trustee in Bankruptcy." 'Whether any contemplated claim fell within s 116(2)(g) of the Bankruptcy Act as a right to recover damages or compensation for personal injury or wrong done to the bankrupt.' 'Whether the alternative application for security for costs should be considered.']

Ratio Decidendi

The statement of claim was so deficient that it could not remain on foot: it failed to identify the plaintiffs, failed to identify any cause of action or material facts supporting one, and created prejudice and embarrassment by making it unclear what case the defendants had to meet. Because the pleading did not permit determination of whether any claim was one for personal injury or wrong preserved to the bankrupt first plaintiff by s 116(2)(g) of the Bankruptcy Act, the proper order was to strike out the statement of claim under Pt 15 r 26 rather than dismiss the action under Pt 13 r 5.

Court Disposition

Statement of claim struck out; first plaintiff ordered to pay the defendants' costs of the motion.

Orders

  • ['That the statement of claim be struck out;' "The first plaintiff is to pay the defendants' costs of this motion."]