Colton v Stuart James Percy trading as Stuart Percy & Associates [2013] NSWDC 4

Colton v Stuart James Percy trading as Stuart Percy & Associates [2013] NSWDC 4

The defendant's Notice of Motion was adjourned part-heard, rather than the claim being struck out immediately, because the plaintiff acknowledged that the pleadings needed to be redrafted, denying him even one chance to amend would be contrary to the spirit of s 56 of the Civil Procedure Act 2005 (NSW), and the defendant's attack was directed generally to the whole pleading rather than attempting to identify whether any part of a cause of action could be salvaged. Mediation was ordered and leave to amend was granted on conditions.

Jurisdiction
Australia
Judgment Date
24 January 2013
Procedural Posture
Civil Interlocutory Application / Defendant's Notice of Motion Seeking That the Plaintiff's Claim Be Struck Out or Dismissed; Plaintiff's Application for Leave to Amend the Statement of Claim
Outcome
Defendant's Notice of Motion stood over part-heard; plaintiff granted conditional leave to amend the Statement of Claim; mediation ordered; costs reserved.
Legal Topics
['summary Judgment' 'strike Out or Dismissal of Pleadings' 'failure to Disclose Cause of Action' 'leave to Amend Statement of Claim' 'mediation' 'solicitor Client Dispute' 'limitation Periods']
['practice and Procedure' 'civil Procedure'] ['summary Judgment' 'strike Out or Dismissal of Pleadings' 'failure to Disclose Cause of Action' 'leave to Amend Statement of Claim' 'mediation' 'solicitor Client Dispute' 'limitation Periods']

Case Brief

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Procedural Posture

Civil Interlocutory Application / Defendant's Notice of Motion Seeking That the Plaintiff's Claim Be Struck Out or Dismissed; Plaintiff's Application for Leave to Amend the Statement of Claim

Legal Issues

  1. 1 ["Whether the plaintiff's prolix pleadings should be struck out or dismissed for failing to identify a cause of action with precision." "Whether the plaintiff should be granted leave to amend the Statement of Claim before the defendant's Notice of Motion is determined." 'Whether the parties should attend mediation to assist the just, quick and cheap resolution of the dispute.']

Ratio Decidendi

The defendant's Notice of Motion was adjourned part-heard, rather than the claim being struck out immediately, because the plaintiff acknowledged that the pleadings needed to be redrafted, denying him even one chance to amend would be contrary to the spirit of s 56 of the Civil Procedure Act 2005 (NSW), and the defendant's attack was directed generally to the whole pleading rather than attempting to identify whether any part of a cause of action could be salvaged. Mediation was ordered and leave to amend was granted on conditions.

Court Disposition

Defendant's Notice of Motion stood over part-heard; plaintiff granted conditional leave to amend the Statement of Claim; mediation ordered; costs reserved.

Orders

  • ["On the application of the plaintiff for leave to amend the Statement of Claim, the hearing of the defendant's Notice of Motion is stood over for hearing to Thursday 4 April 2013." 'Costs reserved.' 'Grant leave to the plaintiff to amend the Statement of Claim conditional upon any such amendment being served on the...