Chan v Perry [2009] NSWSC 1293

Chan v Perry [2009] NSWSC 1293

The proceedings were dismissed because the conspiracy claim failed to plead facts capable of establishing any agreement, intention to injure or resulting loss and damage, and rested on speculative and irrational allegations; the defamation claim failed to plead facts capable of establishing publication to a third...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
27 November 2009
Procedural Posture
Proceedings Alleging Conspiracy and Defamation Arising From a Letter Sent by the Defendant to the Plaintiff / Defendant's Notice of Motion to Dismiss the Proceedings Pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules 2005, With an Alternative Application to Strike Out Pleadings Pursuant to Rule 14.28
Outcome
Proceedings dismissed; plaintiff ordered to pay the defendant's costs of the proceedings.
Legal Topics
['dismissal of Proceedings' 'frivolous or Vexatious Proceedings' 'no Reasonable Cause of Action' 'abuse of Process' 'conspiracy to Injure' 'publication in Defamation' 'pleading Material Facts' 'speculative Pleadings' 'qualified Privilege']
['civil Procedure' 'defamation' 'tort'] ['dismissal of Proceedings' 'frivolous or Vexatious Proceedings' 'no Reasonable Cause of Action' 'abuse of Process' 'conspiracy to Injure' 'publication in Defamation' 'pleading Material Facts' 'speculative Pleadings' 'qualified Privilege']

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Procedural Posture

Proceedings Alleging Conspiracy and Defamation Arising From a Letter Sent by the Defendant to the Plaintiff / Defendant's Notice of Motion to Dismiss the Proceedings Pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules 2005, With an Alternative Application to Strike Out Pleadings Pursuant to Rule 14.28

Legal Issues

  1. 1 ["Whether the plaintiff's conspiracy claim disclosed a reasonable cause of action." "Whether the plaintiff's defamation claim disclosed a reasonable cause of action, including whether publication to a third person was adequately pleaded." 'Whether the plaintiff should be permitted to file further amended pleadings.' 'Whether the proceedings should be dismissed under rule 13.4(1) of the Uniform Civil Procedure Rules 2005.']

Ratio Decidendi

The proceedings were dismissed because the conspiracy claim failed to plead facts capable of establishing any agreement, intention to injure or resulting loss and damage, and rested on speculative and irrational allegations; the defamation claim failed to plead facts capable of establishing publication to a third person sufficient to disclose a reasonable cause of action. After six attempts to plead the claims and prior identification of the flaws, leave to replead was not warranted.

Court Disposition

Proceedings dismissed; plaintiff ordered to pay the defendant's costs of the proceedings.

Orders

  • ['Pursuant to rule 13.4(1) of the UCPR, the proceedings are dismissed.' "The plaintiff is to pay the defendant's costs of the proceedings."]