WALSH v LITTLE & ORS;O'BRIEN v LITTLE & ORS [2009] NSWSC 267

WALSH v LITTLE & ORS;O'BRIEN v LITTLE & ORS [2009] NSWSC 267

The proceedings were not clear cases for summary disposal or strike out. The Fifth Further Amended Statements of Claim pleaded an arguable negligence case, and the alleged duty of care of the applicant lessors depended on factual and legal matters including the condition of the premises at the commencement of the lease, control and powers reserved under the lease, activities conducted on the hotel/motel land, knowledge of crowds and overnight camping, proximity of the cliff and alleged concealment by vegetation, and responsibility for precautions such as fencing, warning signs and illumination. Those matters were not capable of proper determination on the strike out applications.

Jurisdiction
Australia
Judgment Date
08 April 2009
Procedural Posture
Negligence Proceedings Arising From Falls From a Cliff Adjoining Hotel/motel Land / First and Second Defendants' Notices of Motion to Strike Out or Summarily Dismiss the Proceedings Under Uniform Civil Procedure Rules 2005 Rr 13.4 and 14.28
Outcome
Orders set out in paragraphs 1 and 2 of the first and second defendants' notice of motion dated 27 June 2008 are refused; the applications are dismissed.
Legal Topics
['summary Disposal of Proceedings' 'strike Out of Pleadings' 'duty of Care of Lessors' 'commercial Leased Premises' 'foreseeability of Risk' 'adjacent Reserve Land and Cliff Danger']
['negligence' 'leases' 'civil Procedure'] ['summary Disposal of Proceedings' 'strike Out of Pleadings' 'duty of Care of Lessors' 'commercial Leased Premises' 'foreseeability of Risk' 'adjacent Reserve Land and Cliff Danger']

Case Brief

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Procedural Posture

Negligence Proceedings Arising From Falls From a Cliff Adjoining Hotel/motel Land / First and Second Defendants' Notices of Motion to Strike Out or Summarily Dismiss the Proceedings Under Uniform Civil Procedure Rules 2005 Rr 13.4 and 14.28

Legal Issues

  1. 1 ['Whether the proceedings against the first and second defendants disclosed no reasonable cause of action, were frivolous, vexatious or an abuse of process.' 'Whether the Fifth Further Amended Statements of Claim pleaded an arguable cause of action in negligence against the first and second defendants as owners/lessors of the hotel/motel land.' 'Whether it was arguable that the applicant lessors owed a duty of care to hotel patrons or visitors in relation to the risk of persons moving from the hotel/motel land onto adjoining reserve land and falling from a cliff.' 'Whether the factual and legal questions concerning control, knowledge, dangerous defects, warnings, fencing and illumination were suitable for summary determination.']

Ratio Decidendi

The proceedings were not clear cases for summary disposal or strike out. The Fifth Further Amended Statements of Claim pleaded an arguable negligence case, and the alleged duty of care of the applicant lessors depended on factual and legal matters including the condition of the premises at the commencement of the lease, control and powers reserved under the lease, activities conducted on the hotel/motel land, knowledge of crowds and overnight camping, proximity of the cliff and alleged concealment by vegetation, and responsibility for precautions such as fencing, warning signs and illumination. Those matters were not capable of proper determination on the strike out applications.

Court Disposition

Orders set out in paragraphs 1 and 2 of the first and second defendants' notice of motion dated 27 June 2008 are refused; the applications are dismissed.

Orders

  • ['The notices of motion in each case are dismissed.' 'The Court will hear the parties on the question of costs.']