Kostov v YPOL Pty Ltd [2016] NSWSC 961

Kostov v YPOL Pty Ltd [2016] NSWSC 961

Leave to amend was refused because there was no evidence that an amendment would not be futile; the statement of claim did not disclose any cause of action known to law against either defendant, and service on the second defendant outside Australia was not authorised as the pleading did not meet the functional requirements of UCPR Schedule 6. Accordingly, proceedings against the first defendant were dismissed and service on the second defendant was set aside.

Jurisdiction
Australia
Judgment Date
11 July 2016
Procedural Posture
Procedural and Other Rulings / Interlocutory Application; Refusal of Amendment; Summary Dismissal; Service Set Aside
Outcome
Interlocutory applications granted; proceedings against the first defendant dismissed; service set aside as to the second defendant; leave to amend refused; costs against plaintiff.
Legal Topics
['pleadings' 'amendment' 'summary Dismissal' 'service Outside Jurisdiction']
['civil Procedure'] ['pleadings' 'amendment' 'summary Dismissal' 'service Outside Jurisdiction']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Interlocutory Application; Refusal of Amendment; Summary Dismissal; Service Set Aside

Legal Issues

  1. 1 ['Whether leave should be granted to the plaintiff to amend the statement of claim' 'Whether the statement of claim discloses any reasonable cause of action against the defendants' 'Whether service of the statement of claim on the second defendant outside Australia was valid under the Uniform Civil Procedure Rules']

Ratio Decidendi

Leave to amend was refused because there was no evidence that an amendment would not be futile; the statement of claim did not disclose any cause of action known to law against either defendant, and service on the second defendant outside Australia was not authorised as the pleading did not meet the functional requirements of UCPR Schedule 6. Accordingly, proceedings against the first defendant were dismissed and service on the second defendant was set aside.

Court Disposition

Interlocutory applications granted; proceedings against the first defendant dismissed; service set aside as to the second defendant; leave to amend refused; costs against plaintiff.

Orders

  • ['Refuse leave to the plaintiff to amend her statement of claim.' 'Dismiss the proceedings against the first defendant.' 'Set aside service of the statement of claim upon the second defendant.' 'Order the plaintiff to pay the costs of the first defendant and the second defendant of and incidental to the proceedings.']