Cassis & Anor v Kalfus [2002] NSWSC 163

New South Wales Supreme Court

CITATION : Cassis & Anor v Kalfus [2002] NSWSC 163 CURRENT JURISDICTION: Common Law Division Professional Negligence List FILE NUMBER(S) : SC 20589/96 HEARING DATE(S) : 1 March 2002 JUDGMENT DATE : 15 March 2002

Sami Alfred Cassis (First Plaintiff) PARTIES : Giselle Cassis (Second Plaintiff) Marcel Isador Kalfus (Defendant) JUDGMENT OF : Studdert J

COUNSEL : P. Roberts SC/M.K. Minehan (Plaintiffs) G.C. Lindsay SC (Defendant) SOLICITORS : LMG Solicitors & Attorneys (Plaintiffs) Mallesons Stephen Jaques (Defendant) CATCHWORDS : Pleading - application to strike out statement of claim - whether pleading deficient and, if so, in what respects. LEGISLATION CITED : Limitation Act DECISION : See para 43

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE list

STUDDERT J

Friday 15 March 2002

20589/96 SAMI ALFRED CASSIS & ANOR v MARCEL ISADOR KALFUS

JUDGMENT 1 HIS HONOUR: This is an application by way of notice of motion to strike out an amended statement of claim "pursuant to Part 15 rule 26(1)(a), (b) and (c) of the Supreme Court Rules 1970 or the inherent jurisdiction of the Court." 2 It is appropriate to record some matters by way of history. 3 The plaintiffs, Sami Alfred Cassis and Giselle Cassis, instituted proceedings against the defendant, Marcel Isador Kalfus, in 1996. Those proceedings came to trial before Dowd J, whose judgments were delivered on 18 December 2000 and 27 April 2001. On 17 May 2001 the plaintiffs filed notices of appeal from the two judgments and on 22 June 2001 Dowd J delivered a further judgment in favour of the defendant. Then, on 5 July 2001, the plaintiffs filed an amended notice of appeal seeking orders to set aside the earlier judgment of 27 April 2001 and the orders of 22 June 2001. The plaintiffs sought instead judgment in their favour with damages to be assessed. 4 The appeal was heard on 20 and 21 November 2001 and on 11 December 2001 the Court of Appeal allowed the appeal and set aside the orders made by Dowd J in the previous June. The matter was remitted to this Division for a new trial. The Court of Appeal made an order which assumes significance for present purposes: "Order that the appellants [plaintiffs], within twenty-eight days, serve a further draft statement of claim which does appropriately raise the issues concerning causation and quantum of damages in relation to each substantial distinct cause of action relied on." 5 On 14 January 2002 the plaintiffs filed an amended statement of claim expressed to be pursuant to the above order of the Court of Appeal, and it is the filing and serving of that document which has prompted the present notice of motion. 6 The defendant has submitted that the most recent pleading does not comply with the order of the Court of Appeal in respects set out in the submissions of Mr Lindsay of Senior Counsel, and which I will now summarise: