Robert Sebie v Bresic Whitney Pty Limited and Adrian Oddi Real Estate Pty Limited [2021] NSWDC 136

Robert Sebie v Bresic Whitney Pty Limited and Adrian Oddi Real Estate Pty Limited [2021] NSWDC 136

The Statement of Claim is fundamentally deficient, as it does not directly and adequately plead matters necessary to establish a cause of action against the Defendants, and particularisation of breaches is lacking. However, the plaintiff is not precluded from bringing proceedings by the earlier dismissal (which was not on the merits), and neither issue nor Anshun estoppel has been sufficiently established to warrant dismissal. The appropriate course is to strike out the defective Statement of Claim but grant leave to amend, with costs to the Defendants.

Parties
Plaintiff: Robert Sebie; First Defendant: Bresic Whitney Balmain Pty Ltd; Second Defendant: Adrian Oddi Real Estate Pty Limited
Jurisdiction
Australia
Judgment Date
15 April 2021
Procedural Posture
Civil / Notice of Motion to Strike Out or Dismiss—interlocutory Ruling
Outcome
Statement of Claim struck out with leave to replead; costs to defendants
Legal Topics
Notice of Motion, Strike Out Statement of Claim, Dismissal of Proceedings, Issue Estoppel, Anshun Estoppel, Leave to Amend Pleadings
Civil Procedure Notice of Motion Strike Out Statement of Claim Dismissal of Proceedings Issue Estoppel Anshun Estoppel Leave to Amend Pleadings

Case Brief

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Parties

Robert Sebie

Plaintiff

Bresic Whitney Balmain Pty Ltd

First Defendant

Adrian Oddi Real Estate Pty Limited

Second Defendant

Procedural Posture

Civil / Notice of Motion to Strike Out or Dismiss—interlocutory Ruling

Legal Issues

  1. 1 Whether proceedings should be dismissed or the Statement of Claim struck out under UCPR 13.4 and 14.28
  2. 2 Whether the plaintiff was precluded from bringing the present proceedings by section 91 of the Civil Procedure Act 2005 (NSW)
  3. 3 Whether issue estoppel or Anshun estoppel applies to bar the current claim

Ratio Decidendi

The Statement of Claim is fundamentally deficient, as it does not directly and adequately plead matters necessary to establish a cause of action against the Defendants, and particularisation of breaches is lacking. However, the plaintiff is not precluded from bringing proceedings by the earlier dismissal (which was not on the merits), and neither issue nor Anshun estoppel has been sufficiently established to warrant dismissal. The appropriate course is to strike out the defective Statement of Claim but grant leave to amend, with costs to the Defendants.

Court Disposition

Statement of Claim struck out with leave to replead; costs to defendants

Orders

  • Statement of Claim filed is struck out pursuant to UCPR 14.28(1)(a) and (b)
  • Plaintiff granted leave to file an Amended Statement of Claim within 28 days