Kochergen, Jacob Jack & Anor Bell, Geoffrey York & Ors [1997] FCA 322

Kochergen, Jacob Jack & Anor Bell, Geoffrey York & Ors [1997] FCA 322

The second sentence of paragraph 21 and the whole of paragraph 22 of the cross-claim are disallowed as they do not form a legitimate basis for a claim and are embarrassing. Paragraphs 30 and 31 may stand subject to amendment: the duty asserted must be of reasonable care, and the words 'in good conscience' are struck out as they are embarrassing and unsupported.

Jurisdiction
Australia
Judgment Date
05 May 1997
Procedural Posture
Civil / Interlocutory Application—ruling on Objections to Parts of Cross Claim, With Directions on Amendment and Provision of Particulars
Outcome
Objections upheld in part, permission given for amended cross-claim, further particulars to be provided, costs reserved
Legal Topics
['pleading Standards' 'strike Out Application' 'particulars' 'misrepresentation' 'breach of Duty of Care']
['civil Procedure'] ['pleading Standards' 'strike Out Application' 'particulars' 'misrepresentation' 'breach of Duty of Care']

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Procedural Posture

Civil / Interlocutory Application—ruling on Objections to Parts of Cross Claim, With Directions on Amendment and Provision of Particulars

Legal Issues

  1. 1 ['Whether parts of the cross-claim (pars 21, 22, 30, 31) should be struck out for disclosing no reasonable cause of action, being embarrassing, or otherwise untenable' 'Whether particulars of loss must be further particularised at this stage, or after discovery and inspection']

Ratio Decidendi

The second sentence of paragraph 21 and the whole of paragraph 22 of the cross-claim are disallowed as they do not form a legitimate basis for a claim and are embarrassing. Paragraphs 30 and 31 may stand subject to amendment: the duty asserted must be of reasonable care, and the words 'in good conscience' are struck out as they are embarrassing and unsupported.

Court Disposition

Objections upheld in part, permission given for amended cross-claim, further particulars to be provided, costs reserved

Orders

  • ['Leave to cross-claimants to file and serve an amended cross-claim reflecting the required amendments within 7 days' 'Particulars of pars 26(d), (e) and 27(b), (f), (g), (h), (i) to be filed and served in a separate document by 27 June 1997' 'Within 21 days of service of the amended cross-claim, cross-respondents...