Rick v May [2017] NSWSC 769

Procedural Posture

Application for Default Judgment / Notice of Motion for Default Judgment Against the First Defendant

Legal Issues

1. 1 ['Whether the plaintiff sufficiently established the existence and quantum of the alleged debt or liquidated claim for the purposes of UCPR r 16.6.' "Whether the amended statement of claim adequately pleaded a contractual indemnity or variation arising from the alleged admission in the first defendant's affidavit." 'Whether the remuneration claim was adequately pleaded as a debt or liquidated claim against the first defendant personally.' 'Whether the Court should exercise its discretion to enter default judgment despite related claims against other defendants.']

Ratio Decidendi

The amended statement of claim did not adequately plead a contractual basis for the indemnity claim because the alleged affidavit admission was not pleaded as made with an intention to create legal relations, supported by consideration, or as necessarily amounting to a promise to indemnify the plaintiff for the District Court proceedings. The sums claimed did not follow merely as a matter of calculation from the pleaded facts, and the supporting affidavits gave only bare assertions of quantum. The remuneration claim was also inadequately pleaded because it did not clearly allege a personally binding undertaking by the first defendant supported by consideration or the period of service....

Court Disposition

Motion dismissed

Orders

• ["Order that the plaintiff's notice of motion filed 23 March 2017 be dismissed." 'Order that the plaintiff bear his own costs of the motion.']