Xu v Henry Davis York & Ors [2010] NSWSC 1174

Xu v Henry Davis York & Ors [2010] NSWSC 1174

The statement of claim disclosed no cause of action and no real question of fact or law to be determined. To the extent it challenged the process by which possession of the property was forfeited, it re-agitated issues already determined in earlier proceedings; to the extent it complained of the consequences of forfeiture, the plaintiff had conceded default under the loan contract and the bank had lawfully exercised its contractual rights. No amendment could bring to light a reasonable cause of action, so the proceedings were dismissed under r 13.4(1)(b).

Jurisdiction
Australia
Judgment Date
18 October 2010
Procedural Posture
Civil Proceedings; Procedure; Summary Dismissal Application / Defendants' Notice of Motion to Dismiss the Proceedings or Strike Out the Statement of Claim
Outcome
Proceedings dismissed; plaintiff ordered to pay the defendants' costs on the ordinary basis.
Legal Topics
['summary Dismissal' 'strike Out of Statement of Claim' 'no Reasonable Cause of Action' 'abuse of Process' 'mortgage Possession Proceedings' 'costs']
['civil Procedure'] ['summary Dismissal' 'strike Out of Statement of Claim' 'no Reasonable Cause of Action' 'abuse of Process' 'mortgage Possession Proceedings' 'costs']

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; Procedure; Summary Dismissal Application / Defendants' Notice of Motion to Dismiss the Proceedings or Strike Out the Statement of Claim

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed under Uniform Civil Procedure Rules 2005, r 13.4(1)(b) because no reasonable cause of action was disclosed.' 'Whether the statement of claim sought to re-agitate issues already determined in related possession proceedings.' 'Whether costs should be ordered on an indemnity basis or on the ordinary basis.']

Ratio Decidendi

The statement of claim disclosed no cause of action and no real question of fact or law to be determined. To the extent it challenged the process by which possession of the property was forfeited, it re-agitated issues already determined in earlier proceedings; to the extent it complained of the consequences of forfeiture, the plaintiff had conceded default under the loan contract and the bank had lawfully exercised its contractual rights. No amendment could bring to light a reasonable cause of action, so the proceedings were dismissed under r 13.4(1)(b).

Court Disposition

Proceedings dismissed; plaintiff ordered to pay the defendants' costs on the ordinary basis.

Orders

  • ['Proceedings 2010/279675 are dismissed pursuant to Uniform Civil Procedure Rules 2005, r 13.4(1)(b).' "The plaintiff to pay the defendants' costs on the ordinary basis."]