Starwhist Pty Ltd v Tonge [2017] NSWSC 963

Supreme Court New South Wales

Medium Neutral Citation: Starwhist Pty Ltd v Tonge [2017] NSWSC 963 Hearing dates: 7 July 2017 Date of orders: 21 July 2017 Decision date: 21 July 2017 Jurisdiction: Common Law Before: Davies J Decision: (1) Leave to the Defendant to file an amended defence consistent with these reasons but in particular:

(a) Omitting paragraph 9 from the words "except as to the proper" to the end of the paragraph;

(b) By pleading appropriately to paragraph 29 of the Statement of Claim;

(c) By omitting paragraphs 21 to 31 of the proposed defence;

(d) By omitting paragraphs 3 to 13 of the proposed cross-claim;

(e) In relation to paragraphs 34 to 37 of the proposed defence and paragraphs 16 to 19 of the proposed cross-claim, by pleading reliance only on an estoppel arising from the letters of 28 and 31 October 2016;

(f) By removing in paragraph 40 of the proposed defence and paragraph 22 of the proposed cross-claim the words "(which were in fact $1.930 million rather than $2 million)";

(g) By re-pleading the matters in paragraph 42 of the proposed defence and paragraph 24 of the proposed cross-claim to confine the Contracts Review Act claim to one based upon the interest rates charged including, if desired, the rates in the light of the application fee;

(h) By omitting paragraph (e) from paragraph 42 of the proposed defence and paragraph 24 of the proposed cross-claim.

(2) The Plaintiff's Notice of Motion filed 20 June 2017 is dismissed.

(3) The Defendant's Notice of Motion filed 13 June 2017 is dismissed with no order as to costs. Catchwords: PRACTICE AND PROCEDURE – claim for possession of land – application for summary judgment – application for leave to file amended defence and cross-claim – whether proposed defence manifestly hopeless – leave granted in part