Page v McKensey and ors [2002] NSWSC 570

Page v McKensey and ors [2002] NSWSC 570

Leave to file the proposed further amended statement of claim was refused because its essential issues had already been determined by Justice Einstein or, adversely to the Plaintiff's position, by the Court of Appeal, so the proposed pleading disclosed no reasonable cause of action and the proceedings were an abuse of process. The Fair Trading Act claim was also bound to fail and, in any event, was statute barred because the proceedings were commenced on 15 March 1996 and the alleged conduct occurred at the latest in 1992. With no viable pleading, the existing amended statement of claim was struck out and the proceedings dismissed.

Jurisdiction
Australia
Judgment Date
25 June 2002
Procedural Posture
Practice Pleading; Application for Leave to File Further Amended Statement of Claim and Applications to Strike Out or Dismiss Proceedings / Interlocutory Notices of Motion Before Master Mc Laughlin
Outcome
Plaintiff's application for leave to file a further amended statement of claim refused; amended statement of claim struck out; proceedings dismissed; costs ordered against the Plaintiff in favour of the First, Second and Fourth Defendants, with no order as to costs of the Third and Fifth Defendants.
Legal Topics
['leave to Amend Pleadings' 'strike Out' 'dismissal of Proceedings' 'abuse of Process' 're Litigation of Issues' 'anshun Estoppel' 'misleading and Deceptive Conduct' 'limitation Period' 'fiduciary Duty']
['civil Procedure' 'equity' 'partnership' 'fair Trading'] ['leave to Amend Pleadings' 'strike Out' 'dismissal of Proceedings' 'abuse of Process' 're Litigation of Issues' 'anshun Estoppel' 'misleading and Deceptive Conduct' 'limitation Period' 'fiduciary Duty']

Case Brief

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Procedural Posture

Practice Pleading; Application for Leave to File Further Amended Statement of Claim and Applications to Strike Out or Dismiss Proceedings / Interlocutory Notices of Motion Before Master Mc Laughlin

Legal Issues

  1. 1 ['Whether the Plaintiff should be granted leave to file a further amended statement of claim.' 'Whether the amended statement of claim should be struck out and the proceedings dismissed.' 'Whether the proposed pleading disclosed a reasonable cause of action or constituted an abuse of process because it sought to re-litigate issues already determined by Justice Einstein or the Court of Appeal.' 'Whether the Fair Trading Act 1987 claim was statute barred under section 68(2).' "Whether Anshun estoppel precluded the Plaintiff's proposed claims." 'Whether the proposed pleading was embarrassing in form.']

Ratio Decidendi

Leave to file the proposed further amended statement of claim was refused because its essential issues had already been determined by Justice Einstein or, adversely to the Plaintiff's position, by the Court of Appeal, so the proposed pleading disclosed no reasonable cause of action and the proceedings were an abuse of process. The Fair Trading Act claim was also bound to fail and, in any event, was statute barred because the proceedings were commenced on 15 March 1996 and the alleged conduct occurred at the latest in 1992. With no viable pleading, the existing amended statement of claim was struck out and the proceedings dismissed.

Court Disposition

Plaintiff's application for leave to file a further amended statement of claim refused; amended statement of claim struck out; proceedings dismissed; costs ordered against the Plaintiff in favour of the First, Second and Fourth Defendants, with no order as to costs of the Third and Fifth Defendants.

Orders

  • ['I refuse leave to the Plaintiff to file a further amended statement of claim.' 'I order that the amended statement of claim be struck out.' 'I order that the proceedings be dismissed.' 'I order that the Plaintiff pay the costs of the First, Second and Fourth Defendants of the notice of motion filed by the...