Order and were required to file a notice of

This preview shows page 7 - 9 out of 23 pages.

order and were required to file a notice of appearance pursuant to NSW Uniform Civil Procedure Rules 2005 Pt 6 rule 6.1 o Court doesn’t have much sympathy with service arguments when you know about proceedings Drafting a defence:
Pleat to each of the allegations in the statement of claim o Admit; not admit; deny o If you don’t address some/any, then it is assumed you are admitting Plead any affirmative defence (e.g. fraud) Should another party be joined (who may be liable, or for contribution or indemnity) – cross claim Is there a counter claim against the plaintiff or was there contributory negligence? Is the claim statute barred (limitations)? Failure to traverse – NSW Uniform Civil Procedure Rules 2005 rule 14.26 o If you’ve gone and denied that your liable, then it is assumed that you deny you shouldn’t have to pay them because you clearly didn’t think you were liable Joinder of issue – NSW Uniform Civil Procedure Rules 2005 rule 14.27 o Joinder of issue means you take issue with everything the other party has said o Once the defendant has denied some or all of the claim, it is assumed the plaintiff disagrees with everything the defence has said unless there is a reply to the contrary Plaintiff doesn’t have to deny the denial of the defence E.g. if the defendant raises fraud (a positive pleading), and then you in reply say you didn’t commit fraud, that doesn’t matter. The assumption is that you stand by your pleading o Under rule 14.27, a pleading may expressly join issue on a previous pleading, if there is no reply by a plaintiff to a defence, there is an implied joinder of issue on that defence, if there is no answer by the opposite party to reply or subsequent pleading, there is an implied joinder of issue on reply or subsequent pleading Particulars of pleadings: Details of material facts (but not the evidence of those facts) o Pleadings = material facts o Particulars = details of material facts Particulars of pleadings are provided in the statement of claim or defence, or they are provided separately Purpose of particulars – defines scope of evidence and prevents surprise o Informs other side of case they have to meet ‘As are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet’ – NSW Uniform Civil Procedure Rules 2005 rule 15.1 Particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence – NSW Uniform Civil Procedure Rules 2005 rule 15.13 Particulars of facts and circumstances constituting negligence and breach of statutory duty – NSW Uniform Civil Procedure Rules 2005 rule 15.5 How does a party obtain particulars from the other side (if not provided in the pleading or are insufficient in the pleading aka you need further and better particulars)?

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture