Hess v Seaside City Developments Pty Ltd [2022] NSWSC 855

Hess v Seaside City Developments Pty Ltd [2022] NSWSC 855

The proposed amended Statement of Claim is generally adequate to inform the defendants of the case to be made against them, subject to further amendment to specifically and precisely plead the relevant risk of harm as required by s 5B of the Civil Liability Act 2002. Summary dismissal is not appropriate as it is not clear that there is no real question to be tried concerning the involvement of Richtech in the development and associated duty of care or vicarious liability.

Parties
Plaintiff: John Hess; First Defendant: Seaside City Developments Pty Ltd; Second Defendant: Richtech Pty Ltd; Third Defendant: Cardno (Qld) Pty Ltd
Jurisdiction
Australia
Judgment Date
30 June 2022
Procedural Posture
Civil / Interlocutory Application Leave to Amend Pleadings and Summary Dismissal Motion
Outcome
Leave to amend statement of claim granted with condition; summary dismissal refused; costs orders as detailed.
Legal Topics
Pleadings, Amendment, Cause of Action, Vicarious Liability, Summary Dismissal, Duty of Care
Civil Procedure Negligence Pleadings Amendment Cause of Action Vicarious Liability Summary Dismissal Duty of Care

Case Brief

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Parties

John Hess

Plaintiff

Seaside City Developments Pty Ltd

First Defendant

Richtech Pty Ltd

Second Defendant

Cardno (Qld) Pty Ltd

Third Defendant

Procedural Posture

Civil / Interlocutory Application Leave to Amend Pleadings and Summary Dismissal Motion

Legal Issues

  1. 1 Whether the Statement of Claim is deficient and should be struck out.
  2. 2 Whether the plaintiff should be granted leave to file a further amended Statement of Claim.
  3. 3 Whether the claim against the second defendant, Richtech Pty Ltd, should be summarily dismissed for lack of reasonable cause of action.

Ratio Decidendi

The proposed amended Statement of Claim is generally adequate to inform the defendants of the case to be made against them, subject to further amendment to specifically and precisely plead the relevant risk of harm as required by s 5B of the Civil Liability Act 2002. Summary dismissal is not appropriate as it is not clear that there is no real question to be tried concerning the involvement of Richtech in the development and associated duty of care or vicarious liability.

Court Disposition

Leave to amend statement of claim granted with condition; summary dismissal refused; costs orders as detailed.

Orders

  • Grant leave to the plaintiff to file and serve an Amended Statement of Claim, subject to separate pleading of the relevant risk of harm for s 5B Civil Liability Act 2002.
  • Any such further Amended Statement of Claim to be filed and served by 28 July 2022.