McMurtrie & Anor v Calver & Anor [2007] NSWSC 996

McMurtrie & Anor v Calver & Anor [2007] NSWSC 996

The first defendant's motion to set aside default judgment was dismissed because, although the Court accepted the explanation for delay, he did not articulate a defence on the merits beyond saying he would deny the allegations, while evidence included his offer to lease the property with an option to purchase and evidence of acceptance. The second defendant's dismissal application was not granted because aspects of the plaintiffs' claims, including ratification/agency, unjust enrichment and estoppel, were arguable or depended on evidence, but the statement of claim was struck out because it was inadequately pleaded, including the misleading or deceptive conduct claim which did not plead...

Jurisdiction
Australia
Judgment Date
10 September 2007
Procedural Posture
Strike Out Proceedings; Application to Set Aside Default Judgment as Against First Defendant / Interlocutory Notices of Motion
Outcome
The first defendant's notice of motion was dismissed with costs; the statement of claim was struck out; the plaintiffs were given leave to file and serve an amended statement of claim within 28 days; costs of the second defendant's notice of motion were reserved.
Legal Topics
['setting Aside Default Judgment' 'strike Out of Statement of Claim' 'no Reasonable Cause of Action' 'lease of Land and Option to Purchase' 'ratification and Agency' 'conveyancing Act Writing Requirements' 'misleading or Deceptive Conduct' 'unjust Enrichment' 'estoppel']
['civil Procedure' 'contract Law' 'property Law' 'equity' 'consumer Law' 'restitution'] ['setting Aside Default Judgment' 'strike Out of Statement of Claim' 'no Reasonable Cause of Action' 'lease of Land and Option to Purchase' 'ratification and Agency' 'conveyancing Act Writing Requirements' 'misleading or Deceptive Conduct' 'unjust Enrichment' 'estoppel']

Case Brief

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Procedural Posture

Strike Out Proceedings; Application to Set Aside Default Judgment as Against First Defendant / Interlocutory Notices of Motion

Legal Issues

  1. 1 ['Whether the default judgment entered against the first defendant on 10 May 2007 should be set aside.' 'Whether the proceedings against the second defendant should be dismissed under Rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the statement of claim against the second defendant should be struck out under Rule 14.28(1)(a) and (b) of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the pleaded claims in contract, ratification, misleading or deceptive conduct, unjust enrichment and estoppel disclosed arguable causes of action or required repleading.']

Ratio Decidendi

The first defendant's motion to set aside default judgment was dismissed because, although the Court accepted the explanation for delay, he did not articulate a defence on the merits beyond saying he would deny the allegations, while evidence included his offer to lease the property with an option to purchase and evidence of acceptance. The second defendant's dismissal application was not granted because aspects of the plaintiffs' claims, including ratification/agency, unjust enrichment and estoppel, were arguable or depended on evidence, but the statement of claim was struck out because it was inadequately pleaded, including the misleading or deceptive conduct claim which did not plead...

Court Disposition

The first defendant's notice of motion was dismissed with costs; the statement of claim was struck out; the plaintiffs were given leave to file and serve an amended statement of claim within 28 days; costs of the second defendant's notice of motion were reserved.

Orders

  • ["The first defendant's notice of motion filed 7 June 2007 is dismissed with costs." 'The statement of claim is struck out.' 'The plaintiffs are to file and serve an amended statement of claim within 28 days.' "Costs of the second defendant's notice of motion filed 26 June 2007 are reserved."]