Sondakh v Herliman [2021] NSWSC 1144

Sondakh v Herliman [2021] NSWSC 1144

The PFASC (plaintiff's proposed further amended statement of claim) pleads allegations of fraud with sufficient particularity for the purposes of the interlocutory stage, including actual knowledge; the statutory defence of limitation is not established without evidence; and the allegations are not hopeless or doomed to fail. Plaintiff is entitled to amend the statement of claim. Third defendant's notice of motion for summary dismissal/strike out is dismissed. Costs are reserved.

Jurisdiction
Australia
Judgment Date
09 September 2021
Procedural Posture
Procedural Ruling / Interlocutory Application—amendment Pleadings and Strike Out/summarily Dismiss Application
Outcome
Amendment of claim allowed; third defendant's application dismissed; costs reserved.
Legal Topics
['summary Dismissal' 'striking Out Pleadings' 'pleading Fraud' 'amendment of Statement of Claim' 'limitation of Actions']
['civil Procedure'] ['summary Dismissal' 'striking Out Pleadings' 'pleading Fraud' 'amendment of Statement of Claim' 'limitation of Actions']

Case Brief

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Procedural Posture

Procedural Ruling / Interlocutory Application—amendment Pleadings and Strike Out/summarily Dismiss Application

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to further amend her statement of claim' "Whether the third defendant's strike out/summary dismissal application should be granted" "Whether the plaintiff's pleadings relevantly plead fraud with requisite particularity" 'Whether certain claims are statute barred']

Ratio Decidendi

The PFASC (plaintiff's proposed further amended statement of claim) pleads allegations of fraud with sufficient particularity for the purposes of the interlocutory stage, including actual knowledge; the statutory defence of limitation is not established without evidence; and the allegations are not hopeless or doomed to fail. Plaintiff is entitled to amend the statement of claim. Third defendant's notice of motion for summary dismissal/strike out is dismissed. Costs are reserved.

Court Disposition

Amendment of claim allowed; third defendant's application dismissed; costs reserved.

Orders

  • ['The Registrar General be joined as the ninth defendant.' 'The plaintiff is to file and serve the proposed further amended statement of claim (circulated 17 July 2021) within 14 days.' "The third defendant's notice of motion filed 5 May 2021 is dismissed." 'Costs of both notices of motion are reserved.']