Notion of motion to dismiss statement of claim

[adrianoink]

I'm writing to seek advice on my current legal matter. Posting from NSW.

In 2019 I lodged a statement of claim against a person who stole and maliciously damaged my property. The statement of claim was struck out as the court didn't see it as a statement of claim; instead of keeping to the facts I wrote a novel. I lodged a notice of motion to have the claim reinstated, the court said there was no way that this could happen and I agreed to withdraw the case.

In 2020 i issued another statement of claim. A month ago the defendants lawyer issued a notice of motion asking that the claim be dismissed as I was estopped from perusing the claim as the other claim had been dismissed. They cited the case Port of Melbourne Authority V Ashun PTY LTD (1981) 147 CLR 589.

A couple of days later the defendants lawyer contacted me with a settlement offer; we were negotiating this offer but the defendant suddenly changed the terms and I have not heard back from them since.

I'm wondering why they made an offer if they were confident that the case will be thrown out on the notice of motion.

Any advice would be much appreciated.

 

[Rob Legat - SBPL]

Too hard to tell without all the relevant factors, and even then it could be guesswork. So I’ll get right to the guesswork.

My feeling is that their lawyer has given them a cost benefit analysis of ‘what it would cost to make the necessary applications/contest the matter‘ in terms of time and money, versus the scenario of ‘make an offer to get it to all go away’. Sometimes the preferred path is the one of least resistance when considering the end result.

That isn’t to necessarily say that they think you have a strong case, but that could be a factor.

 

[adrianoink]

Too hard to tell without all the relevant factors, and even then it could be guesswork. So I’ll get right to the guesswork.

My feeling is that their lawyer has given them a cost benefit analysis of ‘what it would cost to make the necessary applications/contest the matter‘ in terms of time and money, versus the scenario of ‘make an offer to get it to all go away’. Sometimes the preferred path is the one of least resistance when considering the end result.

That isn’t to necessarily say that they think you have a strong case, but that could be a factor.

Hello Rob, thank you for your reply.

The defendant is my partners ex husband who in a fit of rage entered our house and destroyed my antique furniture and stole my watch. He had been divorced for 2 years at that stage. He was charged by the police and plead guilty. He was dealt with under section 32 (mental health). Under that section there is no provision that I be given any compensation and I have had to take civil action.

The statement of claim is for 100k.

The defendant has lodged a notice of motion with the court to dismiss the case with the plaintiff (me) to pay costs. The motion is to be heard in a week.

A couple of days after the defendants lawyer lodged the motion to dismiss they made me an offer of 12k to be paid over 12 months. I told them I would accept 20k over 20 months. They then said they couldn't afford 1k per month and offered 20k over 40 months. I said I would agree if the defendant paid interest. Nothing more has been heard.

The cost of the defendants lawyer appearing and arguing the motion is considerably lower than the offer of 20k.

My thinking is that since the court struck out my first statement of claim the court doesn't see it as a claim at all. Further, this claim is somewhat different in that it is one page instead of an 11 page novella of what the defendant has done to me over the last few years.