Williamson v Elders [2016] NSWSC 1505

Williamson v Elders [2016] NSWSC 1505

Paragraph 14 of the Defence was not liable to be struck out because it relied on Mr Hannan's affidavit and raised a contestable factual question about whether Mr Williamson was told of the quarry proposal before purchase. The truth or reliability of that evidence was a matter for trial, not for determination on the strike-out motion. The motion was dismissed and indemnity costs ordered because it was based on a fundamental misconception of the Court's interlocutory role and was unreasonably persisted in.

Jurisdiction
Australia
Judgment Date
19 October 2016
Procedural Posture
Motion to Strike Out Defence / Interlocutory Notice of Motion Filed 13 October 2016
Outcome
Notice of Motion dismissed; plaintiff ordered to pay the defendant's costs of the Motion on an indemnity basis.
Legal Topics
['strike Out of Pleading' 'defence Based on Contested Evidence' 'indemnity Costs']
['civil Procedure' 'costs'] ['strike Out of Pleading' 'defence Based on Contested Evidence' 'indemnity Costs']

Case Brief

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Procedural Posture

Motion to Strike Out Defence / Interlocutory Notice of Motion Filed 13 October 2016

Legal Issues

  1. 1 ["Whether paragraph 14 of Elders Limited's Defence should be struck out on the basis that it was manifestly untrue, prejudicial, delaying, an abuse of process, or pleaded without an honest belief in its truth." "Whether the plaintiff should pay the defendant's costs of the Motion on an indemnity basis."]

Ratio Decidendi

Paragraph 14 of the Defence was not liable to be struck out because it relied on Mr Hannan's affidavit and raised a contestable factual question about whether Mr Williamson was told of the quarry proposal before purchase. The truth or reliability of that evidence was a matter for trial, not for determination on the strike-out motion. The motion was dismissed and indemnity costs ordered because it was based on a fundamental misconception of the Court's interlocutory role and was unreasonably persisted in.

Court Disposition

Notice of Motion dismissed; plaintiff ordered to pay the defendant's costs of the Motion on an indemnity basis.

Orders

  • ['Notice of Motion filed 13 October 2016 dismissed.' "Plaintiff to pay the defendant's costs of the Motion on an indemnity basis."]