Yap v Chong [2024] FCA 1326

Yap v Chong [2024] FCA 1326

The pleaded paragraphs in the respondents’ defence were struck out because they were evasive, ambiguous, failed to disclose the defence to be advanced, and improperly reserved pleading to circumstances where no particulars had been requested. Flexibility in pleadings does not excuse refusal to adequately plead. Costs of the interlocutory application were ordered to be paid forthwith due to unreasonable conduct by the respondents in resisting basic pleading requirements.

Parties
Applicant: Thai Choy Yap; First Respondent: John Tse-Liang Chong; Second Respondent: Austral Migration Consultancy Pty Ltd (ABN 15 601 686 042); Third Respondent: Austral Migration Consultancy SDN BHD (Malaysian Company Number 201201032377)
Jurisdiction
Australia
Judgment Date
18 November 2024
Procedural Posture
Interlocutory Application (motion to Strike Out Paragraphs of Defence) / Costs and Interlocutory Orders Following Strike Out of Defence Paragraphs
Outcome
Application to strike out paragraphs of defence allowed. Leave to replead granted. Costs ordered to be paid forthwith.
Legal Topics
Pleadings, Misleading or Deceptive Conduct, Australian Consumer Law, Strike Out Applications, Particulars in Pleadings, Costs on Interlocutory Application
Practice and Procedure Commercial Law Consumer Law Pleadings Misleading or Deceptive Conduct Australian Consumer Law Strike Out Applications Particulars in Pleadings +1 more

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Parties

Thai Choy Yap

Applicant

John Tse-Liang Chong

First Respondent

Austral Migration Consultancy Pty Ltd (ABN 15 601 686 042)

Second Respondent

Austral Migration Consultancy SDN BHD (Malaysian Company Number 201201032377)

Third Respondent

Procedural Posture

Interlocutory Application (motion to Strike Out Paragraphs of Defence) / Costs and Interlocutory Orders Following Strike Out of Defence Paragraphs

Legal Issues

  1. 1 Whether paragraphs of the defence should be struck out for being evasive or ambiguous and for failing to disclose the true nature of the defence
  2. 2 Whether the respondents’ repeated pleas that they will plead in response 'upon provision of proper particulars' is legitimate where no particulars have been sought
  3. 3 Appropriateness of ordering costs of the interlocutory application to be paid forthwith

Ratio Decidendi

The pleaded paragraphs in the respondents’ defence were struck out because they were evasive, ambiguous, failed to disclose the defence to be advanced, and improperly reserved pleading to circumstances where no particulars had been requested. Flexibility in pleadings does not excuse refusal to adequately plead. Costs of the interlocutory application were ordered to be paid forthwith due to unreasonable conduct by the respondents in resisting basic pleading requirements.

Court Disposition

Application to strike out paragraphs of defence allowed. Leave to replead granted. Costs ordered to be paid forthwith.

Orders

  • Paragraphs 15, 18, 19, 20, 21, 22, 23, 28, 30, 31, 33 and 34 of the defence dated 12 July 2024 struck out.
  • Respondents have leave to replead a defence.