Preston v Star City Pty Ltd [1999] NSWSC 1273

New South Wales Supreme Court CITATION : Preston v Star City Pty Ltd [1999] NSWSC 1273 revised - 26/06/2000 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20334 of 1998 HEARING DATE(S) : 21/9/99 JUDGMENT DATE : 22 December 1999

PARTIES : Alexander Preston Star City Pty Ltd JUDGMENT OF : Wood CJatCL

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Master Harrison

COUNSEL : Plaintiff/Respondent: P. Semmler QC, J. Keesing/N. Mullany Defendant/Applicant J.C. Campbell QC. Gageller SOLICITORS : Gells Sydney Coudert Brothers CATCHWORDS : Appeal from Master Harrison; Strike Out motion DECISION : Appeal dismissed.; Motion of defendant dismissed so far as it relates to the statutory count. So much of the statement of claim as deals with that aspect to be struck out. Plaintiff granted leave to file amended statement of claim.

N THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No. 20334/98 WOOD CJ at CL

WEDNESDAY 22 DECEMBER 1999 PRESTON v STAR CITY PTY LTD

JUDGMENT 1 WOOD CJ at CL: This matter comes before the Court by way of an appeal from Master Harrison, refusing to strike out the plaintiff's statement of claim, pursuant to Part 15 r 26 of the Supreme Court Rules, other than for three paragraphs relating to the adequacy with which the plaintiff's claim for damages was pleaded. The plaintiff was given an opportunity to amend the statement of claim in order to cure the deficiencies identified in these three paragraphs. Costs of the motion were ordered to be costs in the cause. 2 The plaintiff has take up the opportunity offered, and has filed an amended statement of claim dealing with the paragraphs struck out, but also alleging matters in support of additional causes of action, based upon undue influence/unjust enrichment, and unconscionable conduct. So far as the amendments relate to the manner in which the plaintiff has pleaded or particularised his claims variously for aggravated damages, exemplary damages, interest, or recoupment of gambling losses, it was agreed that they need not be dealt with in this appeal. It is confined to the existence of the causes of action pleaded in the initial statement of claim, as supplemented in the amended statement of claim, it being the defendant's submission that no relevant duty of care, or other basis upon which recovery might be pursued, exists in law, and that as a result, "no reasonable cause of action" has been disclosed, as that phrase appears in Pt 15 r 26 (1)(a). 3 The parties agree that, although the Master has not given consideration to the fresh causes of action pleaded, it is convenient for the matter to be dealt with by me as a whole. To permit that to occur, a notice of motion seeking orders for the striking out of the new amendments has been filed, and made returnable before me. Although I have some hesitation in dealing with the matter partly as an appeal, and partly afresh, on the whole the course suggested appears convenient and such as to avoid unnecessary delay and cost. It is upon that basis that I will proceed.