Mohareb v Jankulovski [2012] NSWSC 487

Mohareb v Jankulovski [2012] NSWSC 487

The amended statement of claim was struck out because it did not plead the defamation claim in a form recognised by the rules, principally because no defamatory imputations were particularised, and it did not plead the contract claim in a proper form because the contract, its terms, any implied terms, and the circumstances giving rise to them were not set out. However, it could not be said that no cause of action existed, and the pleading defects appeared largely due to lack of legal assistance, so summary dismissal was not ordered and the plaintiff was granted leave to file a further amended statement of claim. The defendants were substantially successful on the motion and were awarded...

Jurisdiction
Australia
Judgment Date
04 May 2012
Procedural Posture
Civil Proceedings Alleging Defamation and Breach of Contract / Interlocutory Application by the First Defendant for Summary Dismissal Under UCPR 13.4 and by the First and Second Defendants to Strike Out the Amended Statement of Claim Under UCPR 14.28
Outcome
Amended statement of claim struck out with leave to file a further amended statement of claim within 28 days; defendants awarded costs of the motion.
Legal Topics
['summary Dismissal' 'strike Out of Pleadings' 'defamatory Imputations' 'breach of Contract Pleading' 'costs of Interlocutory Motion']
['civil Procedure' 'defamation' 'contract Law'] ['summary Dismissal' 'strike Out of Pleadings' 'defamatory Imputations' 'breach of Contract Pleading' 'costs of Interlocutory Motion']

Case Brief

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Procedural Posture

Civil Proceedings Alleging Defamation and Breach of Contract / Interlocutory Application by the First Defendant for Summary Dismissal Under UCPR 13.4 and by the First and Second Defendants to Strike Out the Amended Statement of Claim Under UCPR 14.28

Legal Issues

  1. 1 ['Whether the proceedings against the first defendant should be summarily dismissed under UCPR 13.4 on the basis that he acted only as an officer or director of the second defendant.' 'Whether the amended statement of claim should be struck out under UCPR 14.28 because it failed to plead a reasonable cause of action or was embarrassing.' "Whether the plaintiff's defamation claim was adequately pleaded without particularised defamatory imputations." "Whether the plaintiff's contract claim was adequately pleaded without particularising the contract, its terms, any implied terms, or the circumstances from which they arose." 'Whether the defendants should receive the costs of the motion despite the first defendant not obtaining summary dismissal.']

Ratio Decidendi

The amended statement of claim was struck out because it did not plead the defamation claim in a form recognised by the rules, principally because no defamatory imputations were particularised, and it did not plead the contract claim in a proper form because the contract, its terms, any implied terms, and the circumstances giving rise to them were not set out. However, it could not be said that no cause of action existed, and the pleading defects appeared largely due to lack of legal assistance, so summary dismissal was not ordered and the plaintiff was granted leave to file a further amended statement of claim. The defendants were substantially successful on the motion and were awarded...

Court Disposition

Amended statement of claim struck out with leave to file a further amended statement of claim within 28 days; defendants awarded costs of the motion.

Orders

  • ['The amended statement of claim filed on 27 March 2012 is struck out.' 'Grant leave to the plaintiff to file a further amended statement of claim within 28 days if so advised.' "Order the plaintiff to pay the defendants' costs of the motion." 'Grant liberty to apply in respect of the period of 28 days referred to...