Rix v Wells (No. 2) [2013] NSWSC 1608

Rix v Wells (No. 2) [2013] NSWSC 1608

Although the plaintiff's pleadings were defective and he had failed to file cogent evidence despite repeated directions, the Court was not satisfied that the claim could not possibly succeed or that pursuit of it was an abuse of process. Summary dismissal under UCPR r 13.4 was therefore declined. However, the further amended statement of claim filed on 3 October 2013 was unintelligible, embarrassing and exceeded the leave granted, and the 14 October 2013 document was also liable to be struck out or treated as irrelevant matter. In the circumstances, no further leave to re-plead was granted at that stage.

Jurisdiction
Australia
Judgment Date
30 October 2013
Procedural Posture
Equity Division Proceeding Concerning Alleged Breach of Trustees' Duties; Procedural Motion for Summary Dismissal or Strike Out / Resumed Hearing of the Second and Third Defendants' Notice of Motion Filed on 31 July 2013
Outcome
Proceedings not dismissed; further amended statements of claim struck out; no leave to re-plead in the presently existing circumstances; plaintiff ordered to pay the second and third defendants' costs of the notice of motion filed on 31 July 2013.
Legal Topics
['summary Dismissal' 'strike Out of Pleadings' 'trustees for Sale' 'failure to Comply With Court Orders to File and Serve Evidence' 'self Represented Litigant' 'abuse of Process' 'costs']
['civil Procedure' 'equity' 'trusts' 'property Law'] ['summary Dismissal' 'strike Out of Pleadings' 'trustees for Sale' 'failure to Comply With Court Orders to File and Serve Evidence' 'self Represented Litigant' 'abuse of Process' 'costs']

Case Brief

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Procedural Posture

Equity Division Proceeding Concerning Alleged Breach of Trustees' Duties; Procedural Motion for Summary Dismissal or Strike Out / Resumed Hearing of the Second and Third Defendants' Notice of Motion Filed on 31 July 2013

Legal Issues

  1. 1 ["Whether the proceedings should be dismissed pursuant to UCPR r 13.4 on the basis that the plaintiff's claim could not succeed or was an abuse of process." 'Whether the further amended statement of claim filed on 3 October 2013 should be struck out pursuant to UCPR r 14.28.' 'Whether the document filed on 14 October 2013 should be struck out under UCPR r 14.28 or UCPR r 4.15.' 'Whether further leave to re-plead should be granted despite repeated defective pleadings and failure to file cogent supporting evidence.']

Ratio Decidendi

Although the plaintiff's pleadings were defective and he had failed to file cogent evidence despite repeated directions, the Court was not satisfied that the claim could not possibly succeed or that pursuit of it was an abuse of process. Summary dismissal under UCPR r 13.4 was therefore declined. However, the further amended statement of claim filed on 3 October 2013 was unintelligible, embarrassing and exceeded the leave granted, and the 14 October 2013 document was also liable to be struck out or treated as irrelevant matter. In the circumstances, no further leave to re-plead was granted at that stage.

Court Disposition

Proceedings not dismissed; further amended statements of claim struck out; no leave to re-plead in the presently existing circumstances; plaintiff ordered to pay the second and third defendants' costs of the notice of motion filed on 31 July 2013.

Orders

  • ['That the further amended statement of claim filed on 3 October 2013 be struck out pursuant to UCPR r 14.28.' 'That the further amended statement of claim filed on 14 October 2013 be struck out, either pursuant to UCPR r 14.28 or otherwise pursuant to UCPR r 4.15.' "That the plaintiff pay the second and third...