Creary v Essential Energy; Tathra Beach Motor Village Pty Ltd v Essential Energy; Harris v Essential Energy; Rowland v Essential Energy [2024] NSWSC 37

Creary v Essential Energy; Tathra Beach Motor Village Pty Ltd v Essential Energy; Harris v Essential Energy; Rowland v Essential Energy [2024] NSWSC 37

The particulars in issue have no place in the 5FASOC referring to paragraph 28(a). Paragraph 28(a) refers to visibility from a position at or in close proximity to Pole C and along the transmission line, not from points in the forest such as the marked tree referenced in the Norman Reply Report. The amendment does not accord with the pleading and, given prejudice to the third defendant, ought to be struck out.

Jurisdiction
Australia
Judgment Date
17 January 2024
Procedural Posture
Civil / Interlocutory (ruling on Pleadings Amendment)
Outcome
particulars under paragraph 28(a) struck out; costs orders made
Legal Topics
['amendment of Pleadings' 'strike Out Application' 'prejudice to Party' 'construction of Particulars']
['civil Procedure'] ['amendment of Pleadings' 'strike Out Application' 'prejudice to Party' 'construction of Particulars']

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Procedural Posture

Civil / Interlocutory (ruling on Pleadings Amendment)

Legal Issues

  1. 1 ['Whether challenged particulars under paragraph 28(a) of the 5FASOC should be struck out' 'Whether the amendment causes prejudice to the third defendant' 'Interpretation of the visibility pleaded in paragraph 28(a)']

Ratio Decidendi

The particulars in issue have no place in the 5FASOC referring to paragraph 28(a). Paragraph 28(a) refers to visibility from a position at or in close proximity to Pole C and along the transmission line, not from points in the forest such as the marked tree referenced in the Norman Reply Report. The amendment does not accord with the pleading and, given prejudice to the third defendant, ought to be struck out.

Court Disposition

particulars under paragraph 28(a) struck out; costs orders made

Orders

  • ["Order that the words under the heading 'Particulars' contained in the 5FASOC between paragraphs 28(a) and paragraph 28(b) be struck out." "Order the plaintiff pay the costs of the third defendant's notice of motion." 'Order that the first and second defendants pay their own costs of the proceedings today.']