I recently blogged about the issue of poor pleadings. Today i can give a working example.
I was instructed on a case where Lowell had issued proceedings for a debt. The pleadings were awful, they simply said “and the agreement was terminated”
Well we knew the Claim was based on breach of contract as it said so, and we know the agreement was alleged to have been terminated because it was pleaded, but how was the question that needed answering.
Nowhere within the pleading did it mention a Default notice or a s98A notice, no where did it say that the debtor failed to remedy the breach and the agreement was terminated, no where did it give the date of termination etc.
The editors of Goode are very clear that default notices must be pleaded along with the date of the notice and the date of termination. The Court of Appeal in PRA v Doyle also emphasised the importance of a Default notice not just for pleadings but because it is part of the cause of action and therefore cannot be overlooked.
The Claim was poor, so rather than file a Defence and run the case to trial we instead lodged a summary judgment application. This application has been successful in bringing the case to an end.
Also, when the application was lodged Lowells tried to adduce evidence to support their case, sadly they didnt read through it before lodging it with us, because the evidence said that a default notice was served in 2010, so even if they were right, limitation expired in 2016 and their claim came about in 2019, whoops.
I will be using this approach from here on with any case where a default notice is required but not served or more crucially not pleaded.