Dart v Norwich Union [2000] FCA 1362

The amended statement of claim largely replicated causes of action previously struck out in the Supreme Court and confused the company's rights with those asserted by the natural applicants; misrepresentation claims concerning the lease and foot traffic were not personal causes of action of the applicants. However, the pleading imperfectly suggested a possible cause of action arising from an alleged agreement and subsequent conduct on and after 22 September 1997, potentially including trespass, conversion and contravention of s 51AC of the Trade Practices Act. The amended statement of claim was therefore struck out, but the applicants were given leave to replead those possible personal...

Jurisdiction: Australia
Judgment Date: 19 September 2000
Procedural Posture: Federal Court Civil Proceeding Brought Pursuant to Parts Iva, V and VI of the Trade Practices Act 1974 With Claims Including Unconscionability, Trespass and Estoppel / Notice of Motion by the First and Second Respondents Seeking to Set Aside the Originating Process, or Alternatively Strike Out or Stay/dismiss the Proceeding
Outcome: Amended statement of claim struck out; applicants granted leave to replead within 21 days; costs of the motion awarded to the first and second respondents as applicants on the motion; motions by the third and fourth respondents dismissed with no order as to costs.
Legal Topics: ['strike Out Application' 'no Reasonable Cause of Action' 'prejudice, Embarrassment or Delay' 'abuse of Process' 'unconscionability' 'misrepresentation' 'trespass' 'estoppel' 'conversion' 'leave to Replead']

['civil Procedure' 'trade Practices' 'tort' 'equity'] ['strike Out Application' 'no Reasonable Cause of Action' 'prejudice, Embarrassment or Delay' 'abuse of Process' 'unconscionability' 'misrepresentation' 'trespass' 'estoppel' 'conversion' 'leave to Replead']

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Procedural Posture

Federal Court Civil Proceeding Brought Pursuant to Parts Iva, V and VI of the Trade Practices Act 1974 With Claims Including Unconscionability, Trespass and Estoppel / Notice of Motion by the First and Second Respondents Seeking to Set Aside the Originating Process, or Alternatively Strike Out or Stay/dismiss the Proceeding

Legal Issues

1 ['Whether the originating process should be set aside pursuant to O 9 r 7 of the Federal Court Rules' 'Whether the amended statement of claim should be struck out pursuant to O 11 r 16 for disclosing no reasonable cause of action, tending to cause prejudice, embarrassment or delay, or constituting an abuse of process' 'Whether the proceedings should be stayed or dismissed pursuant to O 20 r 2' 'Whether the natural applicants had personal causes of action based on alleged misrepresentations that led the company to execute the lease' 'Whether a possible cause of action arising from events on and after 22 September 1997, including an alleged new occupation agreement, trespass, conversion and contravention of s 51AC of the Trade Practices Act, could be repleaded']

Ratio Decidendi

Court Disposition

Amended statement of claim struck out; applicants granted leave to replead within 21 days; costs of the motion awarded to the first and second respondents as applicants on the motion; motions by the third and fourth respondents dismissed with no order as to costs.

Orders

['The amended statement of claim filed by the applicants on 28 August 2000 be struck out.' 'The applicants have leave to replead by filing a further amended statement of claim within 21 days of today.' 'The respondents on the motion pay the costs of and incidental to the motion of the applicants on the motion...