Litmus Australia Pty Ltd v Canty & Ors [2006] NSWSC 196

Litmus Australia Pty Ltd v Canty & Ors [2006] NSWSC 196

Although the plaintiff's approach was unsatisfactory and its affidavit material did not articulate the case with acceptable precision, it had not failed utterly to show any factual substratum or evidence; because some claims arguably became statute barred, the preferable course was to order pleadings and require a verified statement of claim within fourteen days, failing which the originating process would be struck out. The challenge based on a supposed inability to combine Corporations Act and general law claims in the Corporations List was misconceived because the Court's jurisdiction under s.1337B of the Corporations Act and the procedural rules did not require compartmentalised...

Jurisdiction
Australia
Judgment Date
28 March 2006
Procedural Posture
Corporations List Proceeding by Originating Process With Interlocutory Process Seeking Strike Out and Costs Orders / Interlocutory Application
Outcome
Interlocutory process partly successful; proceedings ordered to continue on pleadings, with originating process to be struck out only on default, costs awarded against the plaintiff, and the balance of the interlocutory process dismissed.
Legal Topics
['strike Out of Originating Process' 'supporting Affidavit Under Supreme Court (corporations) Rules 1999' 'hybrid Corporations Act and General Law Claims' 'corporations List Jurisdiction' 'costs Against Legal Practitioner']
['civil Procedure' 'corporations Law' 'costs'] ['strike Out of Originating Process' 'supporting Affidavit Under Supreme Court (corporations) Rules 1999' 'hybrid Corporations Act and General Law Claims' 'corporations List Jurisdiction' 'costs Against Legal Practitioner']

Case Brief

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Procedural Posture

Corporations List Proceeding by Originating Process With Interlocutory Process Seeking Strike Out and Costs Orders / Interlocutory Application

Legal Issues

  1. 1 ["Whether the originating process should be struck out because no supporting affidavit was filed with it and the later affidavit did not clearly articulate the plaintiff's case." 'Whether a proceeding commenced under the Supreme Court (Corporations) Rules 1999 in the Corporations List may include both Corporations Act claims and general law claims.' "Whether the plaintiff's solicitor should be ordered to pay the first and third defendants' costs under s.99(1)(b) of the Civil Procedure Act 2005."]

Ratio Decidendi

Although the plaintiff's approach was unsatisfactory and its affidavit material did not articulate the case with acceptable precision, it had not failed utterly to show any factual substratum or evidence; because some claims arguably became statute barred, the preferable course was to order pleadings and require a verified statement of claim within fourteen days, failing which the originating process would be struck out. The challenge based on a supposed inability to combine Corporations Act and general law claims in the Corporations List was misconceived because the Court's jurisdiction under s.1337B of the Corporations Act and the procedural rules did not require compartmentalised...

Court Disposition

Interlocutory process partly successful; proceedings ordered to continue on pleadings, with originating process to be struck out only on default, costs awarded against the plaintiff, and the balance of the interlocutory process dismissed.

Orders

  • ['Order that the proceedings continue on pleadings.' 'Order that the plaintiff file and serve a verified statement of claim within fourteen days.' 'Order that, in default of compliance by the plaintiff with Order 2, the originating process be struck out.' "Order that the plaintiff pay the first and third defendants'...