CIVIL PROCEDURE — plaintiff’s strike-out application and application for judgment — UCPR r 14.28 — where Defence consists of non-admissions, bare denials and formulaic traversals — defendant’s repeated non-compliance with orders — where defendant’s ongoing non-compliance has caused an impermissible burden on remaining lot owners in a strata scheme — whether pleading discloses a Defence, has a tendency to cause delay or is otherwise an abuse of process — whether there is a triable issue — Held: Leave granted to file Amended Defence
Quick Take
1A defence consisting solely of non-admissions, bare denials and formulaic traversals, without pleading any positive case such as payment, set-off, invalidity of levies or miscalculation, is defective and embarrassing in the pleading sense, but will not necessarily be struck out without leave to replead where the defendant's evidence and submissions disclose matters that are not so obviously untenable as to be incapable of success under the General Steel test.
2Where a defendant in strata levy recovery proceedings has repeatedly failed to comply with court orders, the ongoing financial burden imposed on remaining lot owners constitutes real prejudice extending beyond the immediate interests of the litigants, and such conduct is inconsistent with the obligations under ss 56 and 57 of the Civil Procedure Act 2005 (NSW).
3The court's preference that disputes be determined on their merits may justify granting a final opportunity to replead rather than entering summary judgment, but the court will signal that any future non-compliance will be approached very differently.
