Johnston v Smith & 4 Ors [2002] NSWSC 188

Johnston v Smith & 4 Ors [2002] NSWSC 188

The fifth defendant did not demonstrate that the plaintiff's claims were so clearly untenable that they could not succeed. The negligence claim pleaded a duty of care, particulars of breach, and alleged loss, and questions including ratification required factual determination at trial. The conspiracy claim described the parties and relationships, pleaded the agreement and purpose, and pleaded acts said to have a common purpose, so the fifth defendant knew the case it had to meet. The matter should therefore proceed to trial.

Jurisdiction
Australia
Judgment Date
20 March 2002
Procedural Posture
Common Law Division Proceeding Concerning Claims in Negligence and Conspiracy / Fifth Defendant's Amended Notice of Motion to Dismiss the Amended Statement of Claim as Against It or Strike Out Specified Paragraphs
Outcome
The fifth defendant's notice of motion was dismissed, with costs to the plaintiff.
Legal Topics
['summary Dismissal' 'strike Out of Pleadings' 'no Reasonable Cause of Action' 'negligence' 'conspiracy' 'ratification']
['civil Procedure' 'tort Law'] ['summary Dismissal' 'strike Out of Pleadings' 'no Reasonable Cause of Action' 'negligence' 'conspiracy' 'ratification']

Case Brief

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Procedural Posture

Common Law Division Proceeding Concerning Claims in Negligence and Conspiracy / Fifth Defendant's Amended Notice of Motion to Dismiss the Amended Statement of Claim as Against It or Strike Out Specified Paragraphs

Legal Issues

  1. 1 ['Whether the amended statement of claim as against the fifth defendant should be dismissed under Part 13 r 5 of the Supreme Court Rules' 'Whether paragraphs 7, 15 and 48 to 54, and part of paragraph 55 with particulars, should be struck out under Part 15 r 26 of the Supreme Court Rules' "Whether the plaintiff's negligence claim against the fifth defendant disclosed an arguable cause of action" "Whether the plaintiff's conspiracy claim against the fifth defendant was properly pleaded" 'Whether alleged ratification of the loan transaction could be determined summarily']

Ratio Decidendi

The fifth defendant did not demonstrate that the plaintiff's claims were so clearly untenable that they could not succeed. The negligence claim pleaded a duty of care, particulars of breach, and alleged loss, and questions including ratification required factual determination at trial. The conspiracy claim described the parties and relationships, pleaded the agreement and purpose, and pleaded acts said to have a common purpose, so the fifth defendant knew the case it had to meet. The matter should therefore proceed to trial.

Court Disposition

The fifth defendant's notice of motion was dismissed, with costs to the plaintiff.

Orders

  • ['The notice of motion filed 4 March 2002 is dismissed.' "The fifth defendant is to pay the plaintiff's costs as agreed or assessed."]