David Chesterman KC and Lucinda Brabazon (instructed by Russells) were successful in a strike out application for the Defendant, Hutchinson Builders.
The Defendant sought to strike out Part VIII of the Plaintiff’s statement of claim (which contained allegations of fraud, unlawful conspiracy and misleading or deceptive conduct) on the basis that allegations within Part VIII were, principally, unnecessary. That was because the loss and damage in Part VIII was also claimed in Part VII of the statement of claim, and the Plaintiff could only be successful on its claims in Part VIII if it was also successful in Part VII.
Justice Hindman struck out Part VIII, finding that it had the potential to result in the Defendant being required to waste time and expense drafting a defence which would be unnecessary. Her Honour found that was “… contrary to modern litigation principles, which in this jurisdiction are reflected in rule 5 of the Uniform Civil Procedure Rules 1999 (Qld)”. Justice Hindman also reasoned that, in the same way, Part VIII had a tendency to delay the fair trial in the proceeding, which was another ground to strike it out under r 171 UCPR.
Accordingly Part VIII was struck out, without leave to replead.
The judgment can be read by clicking here
