Boase v Sullivan Commercial Pty Ltd trading as McGees Property [2010] FCA 1441

Boase v Sullivan Commercial Pty Ltd trading as McGees Property [2010] FCA 1441

The amended statement of claim fails to adequately plead the material facts necessary to support causes of action in misleading and deceptive conduct and negligence, specifically identifying the conduct alleged, establishing causation, and articulating the basis for a duty of care. The pleading is struck out but leave is granted to re-plead.

Jurisdiction
Australia
Judgment Date
20 December 2010
Procedural Posture
Civil / Application to Strike Out Statement of Claim
Outcome
Statement of claim struck out with leave to re-plead
Legal Topics
['application to Strike Out' 'pleading Requirements' 'misleading and Deceptive Conduct' 'negligence']
['practice and Procedure' 'torts' 'trade Practices'] ['application to Strike Out' 'pleading Requirements' 'misleading and Deceptive Conduct' 'negligence']

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Procedural Posture

Civil / Application to Strike Out Statement of Claim

Legal Issues

  1. 1 ['Whether the amended statement of claim sufficiently pleads misleading or deceptive conduct under the Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (WA)' 'Adequacy of pleading in negligence' 'Whether factual allegations establish causation for loss and damage claimed' 'Whether pleading identifies the conduct said to be misleading or deceptive']

Ratio Decidendi

The amended statement of claim fails to adequately plead the material facts necessary to support causes of action in misleading and deceptive conduct and negligence, specifically identifying the conduct alleged, establishing causation, and articulating the basis for a duty of care. The pleading is struck out but leave is granted to re-plead.

Court Disposition

Statement of claim struck out with leave to re-plead

Orders

  • ['The amended statement of claim will be struck out.' 'The applicants will have leave to re-plead a (re-amended) statement of claim to be filed and served within 28 days.' 'Costs of this application are reserved.']