Riva NSW Pty Limited v Key Nominees Pty Limited [2013] NSWSC 1952

Riva NSW Pty Limited v Key Nominees Pty Limited [2013] NSWSC 1952

Although the Statement of Claim was embarrassing and hopelessly defective because its definitions contained factual allegations that made it virtually impossible to plead to, the circumstances did not justify dismissal of the action against the first defendant as an abuse of process. The earlier dismissal for want of prosecution was not a determination on the merits and did not create an estoppel, and s 91 of the Civil Procedure Act 2005 together with Part 12 of the Uniform Civil Procedure Rules 2005 contemplated that ordinarily the sanction for commencing fresh proceedings after dismissal of earlier proceedings is payment or staying for costs of the earlier action. The plaintiff was...

Jurisdiction
Australia
Judgment Date
20 December 2013
Procedural Posture
Strike Out Application and Application to Dismiss Proceedings as an Abuse of Process / Principal Judgment on Amended Notice of Motion
Outcome
Statement of Claim struck out, with leave to replead by 4 March 2014; application to dismiss the action against the first defendant refused.
Legal Topics
['strike Out of Statement of Claim' 'embarrassing Pleading' 'dismissal for Want of Prosecution' 'fresh Proceedings After Dismissal' 'costs of Earlier Proceedings' 'overriding Purpose Under the Civil Procedure Act 2005']
['practice and Procedure' 'res Judicata' 'abuse of Process'] ['strike Out of Statement of Claim' 'embarrassing Pleading' 'dismissal for Want of Prosecution' 'fresh Proceedings After Dismissal' 'costs of Earlier Proceedings' 'overriding Purpose Under the Civil Procedure Act 2005']

Case Brief

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Procedural Posture

Strike Out Application and Application to Dismiss Proceedings as an Abuse of Process / Principal Judgment on Amended Notice of Motion

Legal Issues

  1. 1 ['Whether the Statement of Claim should be struck out because it was embarrassing and virtually impossible to plead to.' 'Whether proceedings brought after earlier proceedings were dismissed for want of prosecution should be dismissed as an abuse of process.' 'Whether the earlier dismissal for want of prosecution created res judicata or estoppel preventing fresh proceedings.' 'Whether payment or staying for costs of the earlier proceedings was the ordinary sanction contemplated by s 91 of the Civil Procedure Act 2005 and Part 12, Rule 10 of the Uniform Civil Procedure Rules 2005.']

Ratio Decidendi

Although the Statement of Claim was embarrassing and hopelessly defective because its definitions contained factual allegations that made it virtually impossible to plead to, the circumstances did not justify dismissal of the action against the first defendant as an abuse of process. The earlier dismissal for want of prosecution was not a determination on the merits and did not create an estoppel, and s 91 of the Civil Procedure Act 2005 together with Part 12 of the Uniform Civil Procedure Rules 2005 contemplated that ordinarily the sanction for commencing fresh proceedings after dismissal of earlier proceedings is payment or staying for costs of the earlier action. The plaintiff was...

Court Disposition

Statement of Claim struck out, with leave to replead by 4 March 2014; application to dismiss the action against the first defendant refused.

Orders

  • ['The Statement of Claim is struck out.' 'The plaintiffs are given one further final chance to put the pleading in proper form by 4 March 2014.' 'If the pleading is not put in order by 4 March 2014, the proceedings may be dismissed.' 'The plaintiff is to pay the costs of the Motion to date.' 'Further costs...