McMurtrie v Commonwealth of Australia & Ors [2002] NSWSC 1147

McMurtrie v Commonwealth of Australia & Ors [2002] NSWSC 1147

Plaintiff's second further amended statement of claim is deficient and fails to comply with pleading requirements of the Rules of Court. Leave to replead is refused against the third defendant, but plaintiff is given one final opportunity to replead against ATSIC due to recent discovery of documents. Defendants' appeals are allowed and plaintiff's statement of claim is struck out.

Parties
Respondent/plaintiff: Mark McMurtrie; Appellant/2nd Defendant: The Aboriginal & Torres Strait Islander Commissioner (ATSIC); Appellant/3rd Defendant: Dumaresq Shire Council
Jurisdiction
Australia
Judgment Date
29 November 2002
Procedural Posture
Appeal / Post Judgment
Outcome
Appeals allowed; statement of claim struck out; limited leave to replead against ATSIC only
Legal Topics
Pleading Requirements, Oral Agreements, Statutory Transfer of Obligations, Lease Agreements, Part Performance, Summary Judgment, Damages
Contract Law Property Law Administrative Law Pleading Requirements Oral Agreements Statutory Transfer of Obligations Lease Agreements Part Performance +2 more

Case Brief

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Parties

Mark McMurtrie

Respondent/plaintiff

The Aboriginal & Torres Strait Islander Commissioner (ATSIC)

Appellant/2nd Defendant

Dumaresq Shire Council

Appellant/3rd Defendant

Procedural Posture

Appeal / Post Judgment

Legal Issues

  1. 1 Whether the plaintiff's statement of claim should be struck out
  2. 2 Whether plaintiff should be allowed to replead against ATSIC and Dumaresq Shire Council
  3. 3 Whether the oral agreement alleged by the plaintiff constitutes an enforceable contract

Ratio Decidendi

Plaintiff's second further amended statement of claim is deficient and fails to comply with pleading requirements of the Rules of Court. Leave to replead is refused against the third defendant, but plaintiff is given one final opportunity to replead against ATSIC due to recent discovery of documents. Defendants' appeals are allowed and plaintiff's statement of claim is struck out.

Court Disposition

Appeals allowed; statement of claim struck out; limited leave to replead against ATSIC only

Orders

  • Amended statement of claim filed 24 May 2002 struck out
  • Leave to rely on second further amended statement of claim refused