McLeod v Munro & (No 2)

[2005] NSWCA 378

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Pleading
3. › Striking out
4. › Defence disclosing no reasonable defence
5. › Abuse of process
6. › Repeated failure to comply with directions
7. › Whether defence vexatious and abuse of process
8. › District Court Rules 1973 (NSW), Pt 9 r 17(1)(a), (b)
1. Practice and Procedure
2. › Pleading
3. › Summary judgment
4. › Entry of judgment after striking out defence
5. › District Court Rules 1973 (NSW), Pt 9 r 17(3)
1. Practice and Procedure
2. › Parties
3. › Non-joinder
4. › Whether non-joinder defeats judgment
5. › District Court Rules 1973 (NSW), Pt 7 r 7
1. Practice and Procedure
2. › Pleading
3. › Departure in pleading
4. › Whether rule against departure prevents amendments inconsistent with prior version of pleading
5. › District Court Rules 1973 (NSW), Pt 9 r 12(1)

Quick Take

The rule against departure in pleading (DCR Pt 9 r 12(1)) does not inhibit amendments to a pleading that are inconsistent with a prior version of that pleading; the rule is directed against departure between different pleadings (e.g., a reply inconsistent with a statement of claim). Where a contract provides for payment of a fixed sum on a fixed date, the payee can sue for the sum on the due date without establishing performance of other contractual obligations as conditions precedent.