Midland Metals Overseas PTE Ltd v Australian Cablemakers Association Ltd [2017] NSWCA 265

Midland Metals Overseas PTE Ltd v Australian Cablemakers Association Ltd [2017] NSWCA 265

Although the point was finely balanced, the 28 April communications, considered as a whole and in their pleaded context, were capable of giving rise to the twelfth representation. The issue was not whether the representation was actually made, but whether it was so untenable that it should be struck out. Given the contextual matters, the purpose of urging government investigation of Midland Metals' product, and the prospect of a trial on other representations, the General Steel threshold was not met and the pleaded issue should go to trial.

Jurisdiction
Australia
Judgment Date
17 October 2017
Procedural Posture
Application for Leave to Appeal and Appeal in Civil Proceedings Concerning Pleadings and Alleged Misleading or Deceptive Conduct / Court of Appeal From Interlocutory Orders Striking Out a Pleaded Representation and Refusing Amendment
Outcome
Leave to appeal granted; appeal allowed.
Legal Topics
['pleadings' 'strike Out' 'leave to Amend' 'misleading or Deceptive Conduct' 'implied Representations' 'australian Consumer Law S 18']
['civil Procedure' 'consumer Law'] ['pleadings' 'strike Out' 'leave to Amend' 'misleading or Deceptive Conduct' 'implied Representations' 'australian Consumer Law S 18']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal in Civil Proceedings Concerning Pleadings and Alleged Misleading or Deceptive Conduct / Court of Appeal From Interlocutory Orders Striking Out a Pleaded Representation and Refusing Amendment

Legal Issues

  1. 1 ['Whether the alleged twelfth representation was capable of being conveyed by the 28 April communications and attached test report in context.' 'Whether the primary judge erred in striking out the pleaded representation and refusing leave to amend the Commercial List Statement.' 'Whether the General Steel standard for striking out was satisfied.']

Ratio Decidendi

Although the point was finely balanced, the 28 April communications, considered as a whole and in their pleaded context, were capable of giving rise to the twelfth representation. The issue was not whether the representation was actually made, but whether it was so untenable that it should be struck out. Given the contextual matters, the purpose of urging government investigation of Midland Metals' product, and the prospect of a trial on other representations, the General Steel threshold was not met and the pleaded issue should go to trial.

Court Disposition

Leave to appeal granted; appeal allowed.

Orders

  • ['Leave to appeal granted.' 'The applicant is directed to file within seven days a notice of appeal in accordance with the draft in the white folder, and the other requirements as to service in the rules are dispensed with.' 'The appeal is allowed and the orders made on 21 April 2017 are set aside.' 'In lieu of the...