Ghosh v Scott Newton trading as Shaw Gidley (No 6) [2023] NSWSC 1393

Ghosh v Scott Newton trading as Shaw Gidley (No 6) [2023] NSWSC 1393

The original statement of claim should be struck out because it failed to plead claims in accordance with the Rules, concerned proceedings and orders in other courts by which Dr Ghosh remained bound, and fell within the strike out power. Leave to proceed on Mfi A had to be refused because it still sought to impugn orders of other courts, which this Court could not entertain and which involved an abuse of process, and because remaining claims were not pleaded with the material facts and particulars required by the Rules. The proceedings should not yet be dismissed because some defects might be cured by amendment, but Dr Ghosh should have only a final opportunity to replead available...

Jurisdiction
Australia
Judgment Date
17 November 2023
Procedural Posture
Civil Proceedings Concerning Pleadings, Amendment, Strike Out and Dismissal Motions / Interlocutory Motions Before the Supreme Court of New South Wales
Outcome
Original statement of claim struck out; leave to proceed on Mfi A refused; proceedings not dismissed at this stage; Dr Ghosh given a final opportunity to seek leave to replead; matter transferred to the Equity Division.
Legal Topics
['pleadings' 'amendment of Pleadings' 'strike Out' 'summary Dismissal' 'abuse of Process' 'collateral Attack on Judgments' 'transfer to Equity Division' 'pro Bono Referral' 'costs']
['civil Procedure' 'bankruptcy' 'equity'] ['pleadings' 'amendment of Pleadings' 'strike Out' 'summary Dismissal' 'abuse of Process' 'collateral Attack on Judgments' 'transfer to Equity Division' 'pro Bono Referral' 'costs']

Case Brief

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Procedural Posture

Civil Proceedings Concerning Pleadings, Amendment, Strike Out and Dismissal Motions / Interlocutory Motions Before the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether Dr Ghosh should be given leave to amend her March 2023 motion by the late filed October motion.' "Whether Dr Ghosh's original statement of claim should be struck out." 'Whether Dr Ghosh should be granted leave to proceed on the proposed amended statement of claim marked Mfi A.' 'Whether the proceedings should be dismissed under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) or Dr Ghosh should be given a final opportunity to replead.' 'Whether the matter should be transferred to the Equity Division.' 'Whether a further referral for pro bono assistance should be made.' 'What costs orders should be made.']

Ratio Decidendi

The original statement of claim should be struck out because it failed to plead claims in accordance with the Rules, concerned proceedings and orders in other courts by which Dr Ghosh remained bound, and fell within the strike out power. Leave to proceed on Mfi A had to be refused because it still sought to impugn orders of other courts, which this Court could not entertain and which involved an abuse of process, and because remaining claims were not pleaded with the material facts and particulars required by the Rules. The proceedings should not yet be dismissed because some defects might be cured by amendment, but Dr Ghosh should have only a final opportunity to replead available...

Court Disposition

Original statement of claim struck out; leave to proceed on Mfi A refused; proceedings not dismissed at this stage; Dr Ghosh given a final opportunity to seek leave to replead; matter transferred to the Equity Division.

Orders

  • ['Dr Ghosh is given leave to amend her March 2023 motion by her late filed October motion.' "Dr Ghosh's original statement of claim is struck out." 'Dr Ghosh file and serve any further motion seeking leave to file any further amended statement of claim on or before 1 February 2024, together with a supporting...