Abignano Nominees Pty Ltd v Altius Pty Ltd [2018] NSWSC 732

Abignano Nominees Pty Ltd v Altius Pty Ltd [2018] NSWSC 732

Compliance with procedural rules is both a matter of form and substance; pleadings must enable clear understanding of changes and provide sufficient specificity and particularity for claims and defences. The Amended Defence as filed does not meet the requirements and must be struck out in relevant paragraphs with leave to replead.

Parties
First Plaintiff: Abignano Nominees Pty Ltd; Second Plaintiff: Avich Holdings Pty Ltd; Third Plaintiff: Gennaro Abignano; Fourth Plaintiff: B&J Abignano Pty Ltd; Defendant: Altius Pty Ltd
Jurisdiction
Australia
Judgment Date
23 May 2018
Procedural Posture
Civil Procedure / Interlocutory Motion—strike Out/amendment of Defence
Outcome
Relevant paragraphs of Amended Defence struck out; leave to replead granted; costs awarded to plaintiffs.
Legal Topics
Pleadings, Amended Defence, Strike Out, Formatting Rules, Particularity in Pleadings
Civil Procedure Pleadings Amended Defence Strike Out Formatting Rules Particularity in Pleadings

Case Brief

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Parties

Abignano Nominees Pty Ltd

First Plaintiff

Avich Holdings Pty Ltd

Second Plaintiff

Gennaro Abignano

Third Plaintiff

B&J Abignano Pty Ltd

Fourth Plaintiff

Altius Pty Ltd

Defendant

Procedural Posture

Civil Procedure / Interlocutory Motion—strike Out/amendment of Defence

Legal Issues

  1. 1 Whether the Amended Defence complies with formatting rules enabling differentiation from the preceding pleading
  2. 2 Whether Amended Defence provides sufficient detail about documents relied upon and their asserted effect
  3. 3 Whether affirmative allegations have sufficient factual and legal specificity

Ratio Decidendi

Compliance with procedural rules is both a matter of form and substance; pleadings must enable clear understanding of changes and provide sufficient specificity and particularity for claims and defences. The Amended Defence as filed does not meet the requirements and must be struck out in relevant paragraphs with leave to replead.

Court Disposition

Relevant paragraphs of Amended Defence struck out; leave to replead granted; costs awarded to plaintiffs.

Orders

  • Pursuant to rule 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW), paragraphs 4, 6, 19, 21, 23, 24(b), 27, 28, 29, 30, 32 and 38 of the defendant’s Amended Defence filed 15 March 2018 are struck out with leave to replead.
  • The defendant must file and serve any Further Amended Defence by 5pm on 4 July 2018.