Johnston v Smith [2002] NSWSC 409

Johnston v Smith [2002] NSWSC 409

The Master erred by failing to differentiate between the stringent test for summary dismissal or stay under Pt 13 r 5 and the less stringent test for striking out pleadings under Pt 15 r 26. The pleadings against the fifth defendant in conspiracy were conclusory, insufficiently particularised and failed to plead material facts showing common purpose or knowledge. The negligence pleadings were also framed in overly broad terms and, in light of pleaded ratification of the loan transaction, were likely to cause prejudice and delay. The impugned paragraphs should therefore be struck out with leave to re-plead.

Jurisdiction
Australia
Judgment Date
10 May 2002
Procedural Posture
Civil Appeal Concerning Application to Strike Out Pleadings / Appeal From a Master's Refusal to Strike Out Parts of the Statement of Claim Relating to the Fifth Defendant
Outcome
Appeal allowed; orders of the Master set aside; impugned paragraphs of the Statement of Claim struck out with leave to re-plead in negligence and conspiracy against the fifth defendant.
Legal Topics
['pleading Requirements' 'strike Out of Pleadings' 'summary Dismissal or Stay' 'conspiracy' 'negligence' 'appeal From Discretionary Decision of Master']
['civil Procedure' 'tort Law'] ['pleading Requirements' 'strike Out of Pleadings' 'summary Dismissal or Stay' 'conspiracy' 'negligence' 'appeal From Discretionary Decision of Master']

Case Brief

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Procedural Posture

Civil Appeal Concerning Application to Strike Out Pleadings / Appeal From a Master's Refusal to Strike Out Parts of the Statement of Claim Relating to the Fifth Defendant

Legal Issues

  1. 1 ['Whether the pleadings alleging conspiracy against the fifth defendant were defective for lack of particularity and material facts.' 'Whether the pleadings alleging negligence against the fifth defendant were framed so broadly as to cause prejudice, embarrassment or delay.' 'Whether the Master erred by applying the same stringent test to strike out under Pt 15 r 26 as to summary dismissal or stay under Pt 13 r 5.']

Ratio Decidendi

The Master erred by failing to differentiate between the stringent test for summary dismissal or stay under Pt 13 r 5 and the less stringent test for striking out pleadings under Pt 15 r 26. The pleadings against the fifth defendant in conspiracy were conclusory, insufficiently particularised and failed to plead material facts showing common purpose or knowledge. The negligence pleadings were also framed in overly broad terms and, in light of pleaded ratification of the loan transaction, were likely to cause prejudice and delay. The impugned paragraphs should therefore be struck out with leave to re-plead.

Court Disposition

Appeal allowed; orders of the Master set aside; impugned paragraphs of the Statement of Claim struck out with leave to re-plead in negligence and conspiracy against the fifth defendant.

Orders

  • ['Appeal allowed.' 'Orders of the Master set aside.' 'Paragraphs 7, 14, 15, 48, 49, 50, 51, 52, 53, 54, 55(c) of the Statement of Claim and such of the introductory portion of paragraph 55 as alleges "and the Fifth Defendant" struck out.' 'The plaintiff to have leave to re-plead in negligence and conspiracy against...