Tyree v Tyree [2011] NSWSC 275

Tyree v Tyree [2011] NSWSC 275

The 1988 cause of action was clearly statute barred because the pleading alleged that the plaintiff discovered the alleged fraudulent basis of the 1988 share transfer agreement within days of signing it, leaving little room for s 55 to operate. The uncertainty objections to the 1993 agreement and later variations might depend on background circumstances and should go to trial. The claimed penalty and pain and suffering damages were not available in law, and relief dependent on the struck-out claims also had to be struck out.

Jurisdiction
Australia
Judgment Date
06 April 2011
Procedural Posture
Interlocutory Application / Hearing of the Defendant's Notice of Motion Filed 9 March 2011 Seeking to Strike Out the Plaintiff's Amended Statement of Claim Filed on 15 March 2011
Outcome
Defendant's strike-out motion allowed in part; mediation ordered; plaintiff ordered to pay the defendant's costs of the motion subject to submissions on costs.
Legal Topics
['strike Out Pleadings' 'statute Barred Claims' 'fraud and Deceit' 'uncertainty of Contract' 'contractual Damages' 'mediation']
['procedure' 'contract' 'limitation of Actions'] ['strike Out Pleadings' 'statute Barred Claims' 'fraud and Deceit' 'uncertainty of Contract' 'contractual Damages' 'mediation']

Case Brief

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Procedural Posture

Interlocutory Application / Hearing of the Defendant's Notice of Motion Filed 9 March 2011 Seeking to Strike Out the Plaintiff's Amended Statement of Claim Filed on 15 March 2011

Legal Issues

  1. 1 ['Whether the cause of action based on the 1988 share transfer matters was statute barred' 'Whether the claims based on the 1993 agreement and subsequent variations should be struck out as void for uncertainty' 'Whether claims for a penalty, pain and suffering, and other relief should be struck out' 'Whether the matter should be referred to mediation']

Ratio Decidendi

The 1988 cause of action was clearly statute barred because the pleading alleged that the plaintiff discovered the alleged fraudulent basis of the 1988 share transfer agreement within days of signing it, leaving little room for s 55 to operate. The uncertainty objections to the 1993 agreement and later variations might depend on background circumstances and should go to trial. The claimed penalty and pain and suffering damages were not available in law, and relief dependent on the struck-out claims also had to be struck out.

Court Disposition

Defendant's strike-out motion allowed in part; mediation ordered; plaintiff ordered to pay the defendant's costs of the motion subject to submissions on costs.

Orders

  • ['I strike out paragraphs 20, 22 - 38 inclusive and prayers for relief 3 - 11 inclusive.' 'I order the defendant to file his defence to the amended statement of claim within 7 days.' 'I order that the matter be referred to mediation and I will make any consequential orders.' "Subject to any submissions on costs, I...