Briffa v Palasovski [2015] NSWSC 213

Briffa v Palasovski [2015] NSWSC 213

The Court declined to exercise the discretion to stay the proceedings under UCPR r 12.10 due to doubts about the validity of the prior costs order (likely made when plaintiff was bankrupt) and the absence of any assessment or quantification of the amount owed. The Amended Statement of Claim was struck out for failing to clearly plead the cause of action.

Parties
Plaintiff: Berlinda Briffa; First Defendant: Tony Palasovski; Second Defendant: Boris Palasovski; Third Defendant: Elena Palasovski; Fourth Defendant: Nicholas Palasovski
Jurisdiction
Australia
Judgment Date
02 February 2015
Procedural Posture
Civil / Interlocutory Motion in Equity Division Corporations List
Outcome
Amended Statement of Claim struck out; application for stay dismissed; limited adjournments granted for possible further amendment.
Legal Topics
Stay of Proceedings, Dismissal of Proceedings, Bankruptcy and Costs, Striking Out Pleadings
Civil Procedure Stay of Proceedings Dismissal of Proceedings Bankruptcy and Costs Striking Out Pleadings

Case Brief

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Parties

Berlinda Briffa

Plaintiff

Tony Palasovski

First Defendant

Boris Palasovski

Second Defendant

Elena Palasovski

Third Defendant

Nicholas Palasovski

Fourth Defendant

Procedural Posture

Civil / Interlocutory Motion in Equity Division Corporations List

Legal Issues

  1. 1 Whether the proceedings should be stayed under UCPR r 12.10 or Civil Procedure Act 2005 s 67 for unpaid costs in previous proceedings
  2. 2 Whether the Amended Statement of Claim should be struck out

Ratio Decidendi

The Court declined to exercise the discretion to stay the proceedings under UCPR r 12.10 due to doubts about the validity of the prior costs order (likely made when plaintiff was bankrupt) and the absence of any assessment or quantification of the amount owed. The Amended Statement of Claim was struck out for failing to clearly plead the cause of action.

Court Disposition

Amended Statement of Claim struck out; application for stay dismissed; limited adjournments granted for possible further amendment.

Orders

  • The Amended Statement of Claim filed on 23 January 2015 be struck out.
  • The claim for relief in paragraph 3 of the Notice of Motion filed on 17 September 2014 be dismissed.