Van Gorp v Davy [2018] NSWSC 1467

Van Gorp v Davy [2018] NSWSC 1467

The proposed amendment was refused because it reinforced that the Advance was a loan and did not plead facts capable of giving Mr Van Gorp an equitable interest in the properties. The unamended statement of claim was struck out because it disclosed no reasonable cause of action for equitable relief or for setting aside Local Court costs orders, and any contractual claim based on the Advance had already been determined adversely to Mr Van Gorp and would be an abuse of process.

Jurisdiction
Australia
Judgment Date
27 September 2018
Procedural Posture
Equity Proceedings Concerning an Alleged Interest in Properties and Related Monetary and Costs Relief / Hearing of Plaintiff's Notice of Motion for Leave to Amend the Statement of Claim and Defendant's Notice of Motion to Strike Out the Statement of Claim
Outcome
Plaintiff's amendment application refused; statement of claim struck out; plaintiff ordered to pay defendant's costs.
Legal Topics
['leave to Amend Pleading' 'futile Amendment' 'strike Out of Statement of Claim' 'no Reasonable Cause of Action' 'abuse of Process' 'binding Financial Agreement' 'loan Advanced During Marriage' 'equitable Interest in Property']
['civil Procedure' 'equity' 'contract' 'family Law'] ['leave to Amend Pleading' 'futile Amendment' 'strike Out of Statement of Claim' 'no Reasonable Cause of Action' 'abuse of Process' 'binding Financial Agreement' 'loan Advanced During Marriage' 'equitable Interest in Property']

Case Brief

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Procedural Posture

Equity Proceedings Concerning an Alleged Interest in Properties and Related Monetary and Costs Relief / Hearing of Plaintiff's Notice of Motion for Leave to Amend the Statement of Claim and Defendant's Notice of Motion to Strike Out the Statement of Claim

Legal Issues

  1. 1 ['Whether the proposed amended statement of claim would cure the absence of facts supporting an equitable interest in the properties.' 'Whether the statement of claim disclosed a reasonable cause of action for equitable relief, liquidated monetary relief, or setting aside Local Court costs orders.' 'Whether any contractual claim based on the Advance was an abuse of process because it had already been litigated adversely to the plaintiff.']

Ratio Decidendi

The proposed amendment was refused because it reinforced that the Advance was a loan and did not plead facts capable of giving Mr Van Gorp an equitable interest in the properties. The unamended statement of claim was struck out because it disclosed no reasonable cause of action for equitable relief or for setting aside Local Court costs orders, and any contractual claim based on the Advance had already been determined adversely to Mr Van Gorp and would be an abuse of process.

Court Disposition

Plaintiff's amendment application refused; statement of claim struck out; plaintiff ordered to pay defendant's costs.

Orders

  • ["The plaintiff's notice of motion filed 18 September 2018 is dismissed." "The plaintiff is to a pay the defendant's costs of the notice of motion referred to in order 1." 'The statement of claim is struck out pursuant to Uniform Civil Procedure Rules r 14.28.' "The plaintiff is to pay the defendant's costs of and...