Poche v Ellingworth [2023] NSWSC 889

Poche v Ellingworth [2023] NSWSC 889

Leave is granted to the defendant/cross-claimant to file and serve a further amended statement of cross-claim because neither of the pleaded causes of action (damages for breach of collateral contract, or promissory estoppel) are so clearly doomed to fail as to justify summary dismissal or refusal to allow amendment. Difficult questions about the legal maintainability of the collateral contract and use of promissory estoppel as a positive cause of action are not finally determinable at this stage (in particular given the high threshold for summary dismissal and developing law on promissory estoppel). No 'otherwise' costs order is made because to do so could stultify the maintainable claim.

Parties
Plaintiff/cross Defendant: Justin Wade Poche; Defendant/cross Claimant: Stephen William Ellingworth
Jurisdiction
Australia
Judgment Date
27 July 2023
Procedural Posture
Civil / Interlocutory (motions to Amend Cross Claim and for Summary Dismissal)
Outcome
Leave granted to amend cross-claim; application for summary dismissal dismissed; costs awarded to defendant/cross-claimant for the motions; case management orders made.
Legal Topics
Amendment of Pleadings, Summary Judgment, Collateral Contract, Sale of Land, Promissory Estoppel, Costs Orders
Civil Procedure Contracts Equity Amendment of Pleadings Summary Judgment Collateral Contract Sale of Land Promissory Estoppel +1 more

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Parties

Justin Wade Poche

Plaintiff/cross Defendant

Stephen William Ellingworth

Defendant/cross Claimant

Procedural Posture

Civil / Interlocutory (motions to Amend Cross Claim and for Summary Dismissal)

Legal Issues

  1. 1 Whether cross-claimant should be granted leave to file and serve a further amended statement of cross-claim
  2. 2 Whether plaintiff/cross-defendant's application for summary dismissal of the cross-claim should be granted
  3. 3 Whether the alleged collateral contract is inconsistent with the formal contract of sale and therefore not legally maintainable

Ratio Decidendi

Leave is granted to the defendant/cross-claimant to file and serve a further amended statement of cross-claim because neither of the pleaded causes of action (damages for breach of collateral contract, or promissory estoppel) are so clearly doomed to fail as to justify summary dismissal or refusal to allow amendment. Difficult questions about the legal maintainability of the collateral contract and use of promissory estoppel as a positive cause of action are not finally determinable at this stage (in particular given the high threshold for summary dismissal and developing law on promissory estoppel). No 'otherwise' costs order is made because to do so could stultify the maintainable claim.

Court Disposition

Leave granted to amend cross-claim; application for summary dismissal dismissed; costs awarded to defendant/cross-claimant for the motions; case management orders made.

Orders

  • Leave granted to the defendant/cross-claimant to file and serve the further amended statement of cross-claim in accordance with these reasons by 3 August 2023.
  • Plaintiff/cross-defendant's notice of motion of 19 June 2023 is dismissed.