Gillies v Moir [2014] NSWSC 1481

Gillies v Moir [2014] NSWSC 1481

The Amended Statement of Claim failed to articulate any cause of action in a meaningful or rational way and did not comply with pleading requirements. Any pleaded causes of action arose before the plaintiff's 2006 bankruptcy and vested in the Trustee in Bankruptcy, with no evidence of assignment or re-vesting, so the plaintiff lacked standing. The claims were also commenced more than six years after accrual and were statute barred. In those circumstances, bringing the proceedings was an abuse of process and the proceedings were summarily dismissed against all defendants.

Jurisdiction
Australia
Judgment Date
31 October 2014
Procedural Posture
Common Law Civil Proceedings for Damages and Declarations / Hearing of Defendants' Notices of Motion Seeking Summary Dismissal, Strike Out, Judgment and Costs
Outcome
Judgment for the first, second and third defendants on the plaintiff's claim; plaintiff ordered to pay their costs of the proceedings, including costs of the Notices of Motion.
Legal Topics
['summary Dismissal' 'strike Out of Pleading' 'no Reasonable Cause of Action' 'standing of Discharged Bankrupt' 'vesting of Choses in Action in Trustee in Bankruptcy' 'limitation Period' 'abuse of Process' 'costs Follow the Event']
['civil Procedure' 'bankruptcy' 'limitation of Actions' 'costs'] ['summary Dismissal' 'strike Out of Pleading' 'no Reasonable Cause of Action' 'standing of Discharged Bankrupt' 'vesting of Choses in Action in Trustee in Bankruptcy' 'limitation Period' 'abuse of Process' 'costs Follow the Event']

Case Brief

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Procedural Posture

Common Law Civil Proceedings for Damages and Declarations / Hearing of Defendants' Notices of Motion Seeking Summary Dismissal, Strike Out, Judgment and Costs

Legal Issues

  1. 1 ['Whether the Amended Statement of Claim disclosed any reasonable cause of action or complied with proper pleading requirements.' 'Whether the plaintiff had standing to bring causes of action that arose before his 2006 bankruptcy and vested in the Trustee in Bankruptcy.' 'Whether the claims were statute barred under the Limitation Act 1969.' 'Whether commencing the proceedings was an abuse of process.' 'Whether costs should follow the event.']

Ratio Decidendi

The Amended Statement of Claim failed to articulate any cause of action in a meaningful or rational way and did not comply with pleading requirements. Any pleaded causes of action arose before the plaintiff's 2006 bankruptcy and vested in the Trustee in Bankruptcy, with no evidence of assignment or re-vesting, so the plaintiff lacked standing. The claims were also commenced more than six years after accrual and were statute barred. In those circumstances, bringing the proceedings was an abuse of process and the proceedings were summarily dismissed against all defendants.

Court Disposition

Judgment for the first, second and third defendants on the plaintiff's claim; plaintiff ordered to pay their costs of the proceedings, including costs of the Notices of Motion.

Orders

  • ["Judgment for the first, second and third defendants on the plaintiff's claim." 'Plaintiff is to pay the first, second and third defendants costs of the proceedings, including the costs of the Notices of Motion.']