Lynda Margaret Holden v Trustees of the Sisters of Mercy (North Sydney) Property Trust [2015] NSWSC 565

Lynda Margaret Holden v Trustees of the Sisters of Mercy (North Sydney) Property Trust [2015] NSWSC 565

The Seventh Defendant's very extensive request for particulars was, as a whole, oppressive and an abuse of process, so the Court would not enforce it wholesale. However, the Plaintiff's statement of claim was insufficiently particularised in identified respects, including allegations concerning duress, knowledge of incapacity to consent, breaking down free will, breaches of the Adoption of Children Act and regulations, certain misrepresentations, conspiracy, and cruel, inhumane and degrading treatment. The appropriate course was to order further particulars in those identified respects while refusing the more drastic relief of striking out the statement of claim and granting liberty to...

Jurisdiction
Australia
Judgment Date
15 May 2015
Procedural Posture
Common Law Proceedings; Procedural and Other Ruling on Notice of Motion Seeking Particulars, Stay, Re Pleading, Strike Out, Dismissal and Verification of Pleadings / Notice of Motion Filed by the Seventh Defendant Concerning the Plaintiff's Statement of Claim
Outcome
The Plaintiff was ordered to provide further particulars in identified respects within 28 days unless she filed an amended statement of claim within that period providing the relevant particulars. Liberty to amend was granted. Costs were reserved and the proceedings were stood over for mention.
Legal Topics
['request for Particulars' 'unduly Burdensome Request' 'abuse of Process' 'insufficient Particulars in Statement of Claim' 'liberty to Amend' 'strike Out Application' 'adoption Related Allegations']
['practice and Procedure' 'civil Procedure' 'torts'] ['request for Particulars' 'unduly Burdensome Request' 'abuse of Process' 'insufficient Particulars in Statement of Claim' 'liberty to Amend' 'strike Out Application' 'adoption Related Allegations']

Case Brief

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Procedural Posture

Common Law Proceedings; Procedural and Other Ruling on Notice of Motion Seeking Particulars, Stay, Re Pleading, Strike Out, Dismissal and Verification of Pleadings / Notice of Motion Filed by the Seventh Defendant Concerning the Plaintiff's Statement of Claim

Legal Issues

  1. 1 ["Whether the Seventh Defendant's request for particulars was oppressive, unduly burdensome or an abuse of process." "Whether the Plaintiff's statement of claim gave sufficient particulars of serious allegations including duress, undue influence, improper means, conspiracy, breaches of statutory duty and cruel, inhumane and degrading treatment." 'Whether parts of the statement of claim should be struck out or the Plaintiff required to re-plead.' 'Whether the Plaintiff should be granted liberty to file an amended statement of claim.']

Ratio Decidendi

The Seventh Defendant's very extensive request for particulars was, as a whole, oppressive and an abuse of process, so the Court would not enforce it wholesale. However, the Plaintiff's statement of claim was insufficiently particularised in identified respects, including allegations concerning duress, knowledge of incapacity to consent, breaking down free will, breaches of the Adoption of Children Act and regulations, certain misrepresentations, conspiracy, and cruel, inhumane and degrading treatment. The appropriate course was to order further particulars in those identified respects while refusing the more drastic relief of striking out the statement of claim and granting liberty to...

Court Disposition

The Plaintiff was ordered to provide further particulars in identified respects within 28 days unless she filed an amended statement of claim within that period providing the relevant particulars. Liberty to amend was granted. Costs were reserved and the proceedings were stood over for mention.

Orders

  • ['Order the Plaintiff to supply within 28 days to each of the Defendants further particulars as identified in sections (ii), (iii), (vi), (vii), (ix), (x), (xi) and (xii) of reasons delivered today, and as identified in paragraphs 3 and 9 of reasons delivered today, provided that the Plaintiff need not supply such...