Stanizzo v Badarne [2014] NSWSC 1334

Stanizzo v Badarne [2014] NSWSC 1334

Leave to file an Amended Statement of Claim asserting the Deed was void/voidable must be refused because the prior summary dismissal constituted a hearing on the merits within Civil Procedure Act 2005 (NSW) s 91(2); no new facts or material justify departure; and the plaintiff, knowing of grounds for rescission, elected to affirm and sue on the Deed. It is an abuse of process to now seek to re-agitate these matters. The caveat must be removed and injunctive relief refused absent a presently maintainable interest. Claims regarding Charmand and Mazzone may be repleaded once particulars and supporting documents are clarified.

Jurisdiction
Australia
Judgment Date
19 September 2014
Procedural Posture
Application (equity Division) / Interlocutory Hearing – Leave to Amend, Caveat Extension, Transfer Application
Outcome
Leave to file Amended Statement of Claim refused; caveat and injunctive claims dismissed; opportunity given to plead Charmand/Mazzone matters post discovery; application to transfer proceedings reserved.
Legal Topics
['leave to Amend Statement of Claim' 'extension of Caveat' 'summary Dismissal' 'abuse of Process' 'effect of Settlement Deed' 'transfer of Proceedings' 'misleading and Deceptive Conduct']
['equity' 'civil Procedure'] ['leave to Amend Statement of Claim' 'extension of Caveat' 'summary Dismissal' 'abuse of Process' 'effect of Settlement Deed' 'transfer of Proceedings' 'misleading and Deceptive Conduct']

Case Brief

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Procedural Posture

Application (equity Division) / Interlocutory Hearing – Leave to Amend, Caveat Extension, Transfer Application

Legal Issues

  1. 1 ['Whether leave should be granted to file an Amended Statement of Claim asserting the Deed was procured by fraud and/or misleading conduct' "Whether summary dismissal previously was a determination 'on the merits' within Civil Procedure Act 2005 (NSW) s 91(2)" 'Whether fresh or amended claims are precluded or an abuse of process' 'Validity of ongoing caveat and claim for injunctive relief' 'Whether claims regarding Charmand and Mazzone matters can proceed' 'Whether District Court proceedings should be transferred']

Ratio Decidendi

Leave to file an Amended Statement of Claim asserting the Deed was void/voidable must be refused because the prior summary dismissal constituted a hearing on the merits within Civil Procedure Act 2005 (NSW) s 91(2); no new facts or material justify departure; and the plaintiff, knowing of grounds for rescission, elected to affirm and sue on the Deed. It is an abuse of process to now seek to re-agitate these matters. The caveat must be removed and injunctive relief refused absent a presently maintainable interest. Claims regarding Charmand and Mazzone may be repleaded once particulars and supporting documents are clarified.

Court Disposition

Leave to file Amended Statement of Claim refused; caveat and injunctive claims dismissed; opportunity given to plead Charmand/Mazzone matters post discovery; application to transfer proceedings reserved.

Orders

  • ['Leave to file the Amended Statement of Claim is refused.' 'The Summons in the caveat proceedings (2014/142204) is dismissed.' 'Claim for injunctive relief in lieu of caveat is refused.' 'Plaintiff is given a further opportunity to plead his case for Charmand and Mazzone after clarification of factual matters.'...