Successful application to strike out Defence and Counterclaim: Phillip Skelton & Wanda Meyer as Trustee for P Skelton Superannuation Fund No 1 v Leroy Nominees Pty Ltd [2020] WADC 88

Isaac Priddis appeared for my clients, the Plaintiffs, in Phillip Skelton & Wanda Meyer as Trustee for P Skelton Superannuation Fund No 1 v Leroy Nominees Pty Ltd [2020] WADC 88.

Basic Facts Summary

This case was as a ‘debt recovery’ matter, with the Plaintiffs’ claims arising from 2 separate loan agreements in 2015 & 2016.

The Plaintiffs were seeking to recover an amount of $420,000.

This was an interlocutory decision.

You can read the decision here.

We applied to strike out the amended defence and counterclaim, filed by the Defendants.

Such applications are called ‘strike-out applications’.

Striking out pleadings

The Rules of the Supreme Court 1971 (WA), in Order 20 r 19(1), provide that the Court may at any stage of proceedings strike out any pleading or anything in the pleading on the ground that:

a) it discloses no reasonable cause of action or defence;

b) it is scandalous, frivolous or vexatious;

c) it may prejudice, embarrass or delay the fair trial of the action; or

d) it is otherwise an abuse of the process of the Court.

We submitted that the defence and counterclaim should struck out because they disclosed no reasonable cause of action, were embarrassing and might delay a fair trial of the action.

Outcome

The court found a number of problems in the amended defence and counterclaim.

Firstly, there were found to be numerous pages in the Defendant’s pleadings which contained what could generously be described as evidence.

This evidence included an annual trial balance of the Defendant company, as well as various claims and declarations made in the taxation returns of parties.

Secondly, the counterclaim was found to be wholly unsustainable.

Due to these findings amongst a number of other errors, the whole of the counterclaim was struck out, with Deputy Registrar Hewett stating the following at [13]:

“My overall conclusion is that the whole of the counterclaim should be struck out not because it is necessarily wholly unsustainable but because it is riddled with various problems, has already been amended once and would be far more useful to commence with a clean sheet setting out the counterclaim in better detail.”