De Varda v Austin Legal Solicitor [2013] NSWSC 1919

De Varda v Austin Legal Solicitor [2013] NSWSC 1919

The Statement of Claim was manifestly defective because it pleaded negligence without pleading an essential element, namely the existence, nature and content of any duty of care owed by the defendant to the plaintiffs. However, given the plaintiffs' indication that they wished to amend to plead fraud, and because the Court was not prepared to conclude at that stage that no fraud case could possibly be pleaded, the proper course was to strike out the existing Statement of Claim, allow the plaintiffs an opportunity to seek leave to file a proposed amended pleading supported by affidavit evidence, stand over the motions, and reserve costs.

Jurisdiction
Australia
Judgment Date
30 October 2013
Procedural Posture
Common Law Proceedings Involving Notices of Motion / Interlocutory Motions to Dismiss or Strike Out the Statement of Claim, for Jury Trial, and for Leave to Amend
Outcome
Statement of Claim struck out; plaintiffs given directions and an opportunity to seek leave to file an Amended Statement of Claim; motions stood over; costs reserved.
Legal Topics
['strike Out of Statement of Claim' 'leave to Amend Pleading' 'finality of Litigation' 'fraud Exception to Finality' "solicitor's Duty of Care to Opposing Parties" 'costs Reserved']
['civil Procedure' 'common Law'] ['strike Out of Statement of Claim' 'leave to Amend Pleading' 'finality of Litigation' 'fraud Exception to Finality' "solicitor's Duty of Care to Opposing Parties" 'costs Reserved']

Case Brief

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Procedural Posture

Common Law Proceedings Involving Notices of Motion / Interlocutory Motions to Dismiss or Strike Out the Statement of Claim, for Jury Trial, and for Leave to Amend

Legal Issues

  1. 1 ['Whether the Statement of Claim should be dismissed or struck out as manifestly defective for failing to plead the existence, nature and content of a duty of care owed by the defendant to the plaintiffs.' 'Whether the plaintiffs should be given an opportunity to bring forward a proposed amended pleading based on fraud.' 'Whether any proposed fraud claim would necessarily be barred as a collateral attack on earlier decisions in the Equity Division and the CTTT.' 'What directions should be made to avoid disadvantage to the defendant while allowing the plaintiffs an opportunity to propose an amended pleading.']

Ratio Decidendi

The Statement of Claim was manifestly defective because it pleaded negligence without pleading an essential element, namely the existence, nature and content of any duty of care owed by the defendant to the plaintiffs. However, given the plaintiffs' indication that they wished to amend to plead fraud, and because the Court was not prepared to conclude at that stage that no fraud case could possibly be pleaded, the proper course was to strike out the existing Statement of Claim, allow the plaintiffs an opportunity to seek leave to file a proposed amended pleading supported by affidavit evidence, stand over the motions, and reserve costs.

Court Disposition

Statement of Claim struck out; plaintiffs given directions and an opportunity to seek leave to file an Amended Statement of Claim; motions stood over; costs reserved.

Orders

  • ['Pursuant to r 14.28 of the Uniform Civil Procedure Rules order that the Statement of Claim filed 3 September 2013 be struck out.' 'Order that the plaintiffs are to file and serve on or before 4pm 9 December 2013 any Notice of Motion for leave to file an Amended Statement of Claim to which there must be annexed any...