Gould v Alberici & Anor [1999] NSWSC 55

Gould v Alberici & Anor [1999] NSWSC 55

The Master's dismissal could not stand because the amended statement of claim did include a claim by Mr Gould on his own behalf. Although the pleading disclosed no reasonable cause of action for breach of contract or management negligence and inadequately pleaded deceit, justice required that Mr Gould be given one further opportunity to plead a cause of action in deceit. The proposed joinder of Halisa and OIC failed for lack of satisfactory evidence of their legal existence and consent to joinder.

Jurisdiction
Australia
Judgment Date
15 February 1999
Procedural Posture
Practice and Procedure Dismiss Proceedings or Strike Out Statement of Claim / Appeal From Determination of Master Harrison Dismissing Proceedings; Notice of Motion for Addition of Plaintiffs
Outcome
Appeal allowed. Notice of Motion dismissed.
Legal Topics
['strike Out of Statement of Claim' 'dismissal of Proceedings' 'leave to Replead' 'joinder of Plaintiffs' 'deceit']
['practice and Procedure'] ['strike Out of Statement of Claim' 'dismissal of Proceedings' 'leave to Replead' 'joinder of Plaintiffs' 'deceit']

Case Brief

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Procedural Posture

Practice and Procedure Dismiss Proceedings or Strike Out Statement of Claim / Appeal From Determination of Master Harrison Dismissing Proceedings; Notice of Motion for Addition of Plaintiffs

Legal Issues

  1. 1 ['Whether Master Harrison erred in treating the amended statement of claim as not including a claim by the plaintiff on his own behalf.' 'Whether the amended statement of claim disclosed a reasonable cause of action under breach of contract or management negligence.' 'Whether the allegations under false misrepresentation pleaded facts with sufficient clarity to support a cause of action in deceit.' 'Whether the plaintiff should be given leave to file a further amended statement of claim limited to deceit.' 'Whether Halisa-NSW Partnership and OIC EAIM Project Team should be added as plaintiffs.']

Ratio Decidendi

The Master's dismissal could not stand because the amended statement of claim did include a claim by Mr Gould on his own behalf. Although the pleading disclosed no reasonable cause of action for breach of contract or management negligence and inadequately pleaded deceit, justice required that Mr Gould be given one further opportunity to plead a cause of action in deceit. The proposed joinder of Halisa and OIC failed for lack of satisfactory evidence of their legal existence and consent to joinder.

Court Disposition

Appeal allowed. Notice of Motion dismissed.

Orders

  • ['Decision of Master Harrison given on 3 November 1998 set aside.' 'Amended statement of claim struck out.' 'Leave to the plaintiff to file and serve a further amended statement of claim limited to a cause of action for deceit by 4.00 pm on 12 March 1999.' "Plaintiff to pay the defendants' costs of the appeal."...