Bott v Carter [2010] NSWCA 21

Bott v Carter [2010] NSWCA 21

There were no reasonable prospects of success in an appeal against the strike out of the fourth amended statement of claim because the pleading was manifestly inadequate in pleading material facts as to retainer, breach and causation. However, leave to appeal was granted on the limited question whether Hislop J's exercise of power miscarried in dismissing the proceedings generally without giving an opportunity to replead.

Jurisdiction
Australia
Judgment Date
24 February 2010
Procedural Posture
Application for Leave to Appeal in Professional Negligence Proceedings / Court of Appeal Application for Leave to Appeal From Orders Striking Out the Fourth Amended Statement of Claim and Dismissing the Proceedings Generally
Outcome
Leave to appeal granted only on the question of the exercise of the power by Hislop J to dismiss the proceedings generally; application for leave to appeal otherwise refused.
Legal Topics
['leave to Appeal' 'striking Out Pleadings' 'summary Dismissal' 'pleading Material Facts' 'professional Negligence Claim Against Solicitor and Counsel']
['civil Procedure' 'professional Negligence'] ['leave to Appeal' 'striking Out Pleadings' 'summary Dismissal' 'pleading Material Facts' 'professional Negligence Claim Against Solicitor and Counsel']

Case Brief

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Procedural Posture

Application for Leave to Appeal in Professional Negligence Proceedings / Court of Appeal Application for Leave to Appeal From Orders Striking Out the Fourth Amended Statement of Claim and Dismissing the Proceedings Generally

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the striking out of the fourth amended statement of claim.' "Whether leave to appeal should be granted on the question whether the primary judge's exercise of power miscarried by dismissing the proceedings generally without giving an opportunity to replead."]

Ratio Decidendi

There were no reasonable prospects of success in an appeal against the strike out of the fourth amended statement of claim because the pleading was manifestly inadequate in pleading material facts as to retainer, breach and causation. However, leave to appeal was granted on the limited question whether Hislop J's exercise of power miscarried in dismissing the proceedings generally without giving an opportunity to replead.

Court Disposition

Leave to appeal granted only on the question of the exercise of the power by Hislop J to dismiss the proceedings generally; application for leave to appeal otherwise refused.

Orders

  • ['Leave to appeal be granted on the question of the exercise of the power by Hislop J to dismiss the proceedings generally.' 'Direct the Registrar to approach the New South Wales Bar Association for pro bono assistance by an experienced junior counsel in the field of professional negligence to assist the appellant...