Elias v Bova & 2 Ors [1999] NSWSC 840

Elias v Bova & 2 Ors [1999] NSWSC 840

The plaintiff's pleading against the third defendant did not establish a cause of action for interference with contractual relations because the pleaded interference occurred before any established exchange of the option agreement and there was no existing contractual relationship between the plaintiff and the first and second defendants capable of supporting that tort. However, the statement of claim was not struck out on the basis that the option was void under s 66ZG because there could be disputed evidence at trial about whether an exchange occurred. The statement of claim was struck out against the third defendant with leave to file and serve an amended statement of claim.

Jurisdiction
Australia
Judgment Date
23 August 1999
Procedural Posture
Civil Proceedings Concerning an Option Agreement for Residential Property and Alleged Interference With Contractual Relations / Third Defendant's Notice of Motion to Set Aside the Statement of Claim Under S 66 ZG of the Conveyancing Act 1919 (nsw) or Alternatively Dismiss It Under Part 13 R 5 of the Supreme Court Rules
Outcome
Statement of claim struck out as against the third defendant, with leave to replead against the third defendant within 21 days; plaintiff ordered to pay the third defendant's costs of the notice of motion.
Legal Topics
['strike Out of Statement of Claim' 'summary Dismissal' 'residential Property Option' 'exchange of Counterparts' 'interference With Contractual Relations' 'inducing Breach of Contract']
['civil Procedure' 'conveyancing' 'contract Law' 'tort Law'] ['strike Out of Statement of Claim' 'summary Dismissal' 'residential Property Option' 'exchange of Counterparts' 'interference With Contractual Relations' 'inducing Breach of Contract']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Proceedings Concerning an Option Agreement for Residential Property and Alleged Interference With Contractual Relations / Third Defendant's Notice of Motion to Set Aside the Statement of Claim Under S 66 ZG of the Conveyancing Act 1919 (nsw) or Alternatively Dismiss It Under Part 13 R 5 of the Supreme Court Rules

Legal Issues

  1. 1 ['Whether the statement of claim should be set aside against the third defendant because the option was void under s 66ZG of the Conveyancing Act 1919 (NSW).' 'Whether, on the pleaded and undisputed facts, the plaintiff had an existing contract with the first and second defendants capable of supporting a cause of action for interference with contractual relations against the third defendant.' 'Whether the tort of interference with contractual relations should be treated as extending to a non-formulated contract or an agreement to enter into a contract.']

Ratio Decidendi

The plaintiff's pleading against the third defendant did not establish a cause of action for interference with contractual relations because the pleaded interference occurred before any established exchange of the option agreement and there was no existing contractual relationship between the plaintiff and the first and second defendants capable of supporting that tort. However, the statement of claim was not struck out on the basis that the option was void under s 66ZG because there could be disputed evidence at trial about whether an exchange occurred. The statement of claim was struck out against the third defendant with leave to file and serve an amended statement of claim.

Court Disposition

Statement of claim struck out as against the third defendant, with leave to replead against the third defendant within 21 days; plaintiff ordered to pay the third defendant's costs of the notice of motion.

Orders

  • ['The statement of claim is struck out as against the third defendant.' 'An amended statement of claim which repleads a cause of action or causes of action against the third defendant is to be filed and served within 21 days.' "The plaintiff is to pay the third defendant's costs of the notice of motion filed 22...