Awad v Naboulsi [2009] NSWSC 1406

Awad v Naboulsi [2009] NSWSC 1406

The paragraphs of the cross-claim that seek to re-litigate the parties' relationship, business ownership, and stock issues determined by the earlier proceedings and recorded in the Deed must be struck out as impermissible; allegations of a collateral agreement or implied term inconsistent with the Deed are unarguable as the Deed is expressed to be the entire agreement between the parties. However, the defendant is permitted to re-plead only regarding the special meaning of 'Further Stock' as relevant to construing the Deed, without contradicting substrate facts resolved in the prior proceedings.

Jurisdiction
Australia
Judgment Date
16 December 2009
Procedural Posture
Civil / Interlocutory Motion for Strike Out of Cross Claim Paragraphs
Outcome
Cross-claim paragraphs struck out with leave to re-plead in limited form; costs awarded to plaintiff.
Legal Topics
['strike Out Applications' 'res Judicata' 'collateral Contract' 'construction of Deed']
['civil Procedure'] ['strike Out Applications' 'res Judicata' 'collateral Contract' 'construction of Deed']

Case Brief

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Procedural Posture

Civil / Interlocutory Motion for Strike Out of Cross Claim Paragraphs

Legal Issues

  1. 1 ["Whether the defendant's cross-claim re-agitates issues previously determined by consent orders and Deed" 'Whether assertion of a collateral contract or implied terms inconsistent with the Deed is permissible' 'Whether portions of the cross-claim should be struck out under the Uniform Civil Procedure Rules 2005']

Ratio Decidendi

The paragraphs of the cross-claim that seek to re-litigate the parties' relationship, business ownership, and stock issues determined by the earlier proceedings and recorded in the Deed must be struck out as impermissible; allegations of a collateral agreement or implied term inconsistent with the Deed are unarguable as the Deed is expressed to be the entire agreement between the parties. However, the defendant is permitted to re-plead only regarding the special meaning of 'Further Stock' as relevant to construing the Deed, without contradicting substrate facts resolved in the prior proceedings.

Court Disposition

Cross-claim paragraphs struck out with leave to re-plead in limited form; costs awarded to plaintiff.

Orders

  • ['Pursuant to UCPR 14.28, paragraphs 1, 2, 5, 6, 7, 8, 9, 10, 14, 15, 16, 17, 20, and 27 of the first cross-claim and statement of cross-claim are struck out.' 'The cross claimant is granted liberty to file an amended first cross-claim and statement of cross-claim.' "The cross claimant/defendant must pay the...