Perpetual Trustees Australia v Richards (No 2) [2008] NSWSC 974

Perpetual Trustees Australia v Richards (No 2) [2008] NSWSC 974

The paragraphs of the defence in question raise factual matters that are not obviously hopeless and turn on disputed facts; therefore, they ought not to be struck out but should be resolved at trial. An application to strike out such defences is inappropriate where the contractual status and factual matrix are significantly in dispute. The plaintiff is not entitled to a Bullock order or special costs order at this stage as costs follow the event, pending the ultimate outcome.

Jurisdiction
Australia
Judgment Date
23 September 2008
Procedural Posture
Interlocutory Application (motion) in Civil Proceedings / Supplementary Reasons on Strike Out and Costs Applications Prior to Trial
Outcome
Plaintiff's application to strike out paragraphs dismissed; plaintiff to pay first defendant's costs.
Legal Topics
['strike Out Application' 'costs' 'pleadings' 'contracts Review Act' 'unjust Contracts' 'unconscionable Conduct']
['civil Procedure'] ['strike Out Application' 'costs' 'pleadings' 'contracts Review Act' 'unjust Contracts' 'unconscionable Conduct']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application (motion) in Civil Proceedings / Supplementary Reasons on Strike Out and Costs Applications Prior to Trial

Legal Issues

  1. 1 ['Whether certain paragraphs of the defence should be struck out as hopeless' 'Whether the plaintiff is entitled to a Bullock order for costs' 'Applicability of the Contracts Review Act 1980 (NSW), Consumer Credit Code, Trade Practices Act, and ASIC Act in circumstances alleged']

Ratio Decidendi

The paragraphs of the defence in question raise factual matters that are not obviously hopeless and turn on disputed facts; therefore, they ought not to be struck out but should be resolved at trial. An application to strike out such defences is inappropriate where the contractual status and factual matrix are significantly in dispute. The plaintiff is not entitled to a Bullock order or special costs order at this stage as costs follow the event, pending the ultimate outcome.

Court Disposition

Plaintiff's application to strike out paragraphs dismissed; plaintiff to pay first defendant's costs.

Orders

  • ['I decline to strike out paragraphs [18(c)], [19(a)], [19(b)], [24(b)], [25(c)], [25(d)] and [45] to [48] of the further amended defence.' "So far as paragraph 2 of the plaintiff's amended notice of motion filed 1 February 2008 is concerned and the amended notice of motion filed 29 August 2008, the plaintiff is to...