Von Schulz v Hurstville City Council [2000] NSWSC 1035

Von Schulz v Hurstville City Council [2000] NSWSC 1035

Claims based on the Fair Trading Act are statute barred and must be struck out. The plaintiff's claim for his wife's damages must also be struck out as she is not a plaintiff. However, the causes of action in negligence and nuisance, and potentially for other common law wrongs, are not so clearly untenable as to...

Source-derived case information.

Parties
Plaintiff: Karl Von Schulz; Defendant: Hurstville City Council
Jurisdiction
Australia
Judgment Date
08 November 2000
Procedural Posture
Civil / Summary Judgment Application Before Master
Outcome
Summary judgment granted in part; leave to replead granted; costs to defendant
Legal Topics
Summary Judgment, Limitation Periods, Negligence, Nuisance, Pleading Standards, Abuse of Process
Tort Law Civil Procedure Summary Judgment Limitation Periods Negligence Nuisance Pleading Standards Abuse of Process

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Parties

Karl Von Schulz

Plaintiff

Hurstville City Council

Defendant

Procedural Posture

Civil / Summary Judgment Application Before Master

Legal Issues

  1. 1 Whether the proceedings should be stayed or struck out as disclosing no reasonable cause of action, as frivolous, vexatious or an abuse of process
  2. 2 Whether portions of the claim are statute barred under limitation legislation
  3. 3 Whether elements of the claim (e.g. wife’s loss of income, Fair Trading Act claims) are properly pleaded and maintainable

Ratio Decidendi

Claims based on the Fair Trading Act are statute barred and must be struck out. The plaintiff's claim for his wife's damages must also be struck out as she is not a plaintiff. However, the causes of action in negligence and nuisance, and potentially for other common law wrongs, are not so clearly untenable as to warrant summary dismissal and may go to trial, with the plaintiff given one further opportunity to replead.

Court Disposition

Summary judgment granted in part; leave to replead granted; costs to defendant

Orders

  • Plaintiff granted leave to file a third amended statement of claim within two months
  • Plaintiff to pay defendant's costs