Procter v Kalivis [2009] FCA 795

Procter v Kalivis [2009] FCA 795

Discovery before particulars was appropriate due to fiduciary duty relationships and the respondents' possession of relevant information; provisions of statement of claim lacking sufficient particularity (specifically failing to plead how constructive trust arose) warranted striking out; but the entire statement of claim was not struck out as deficiencies were not sufficient to justify such order.

Parties
First Applicant: Eve Lynne Procter; Second Applicant: Brenda Maureen Procter; First Respondent: Evangelo Kalivis; Second Respondent: ACN 088 370 996 Pty Ltd; Third Respondent: Patricia Anne Dabrowski; Fourth Respondent: Timothy John Dabrowski; Fifth Respondent: Berri Developments Pty Ltd (ACN 126 373 939)
Jurisdiction
Australia
Judgment Date
31 July 2009
Procedural Posture
General Division Civil / Interlocutory Applications to Strike Out Parts of Statement of Claim and for Discovery Before Particulars
Outcome
Provisions of statement of claim struck out for insufficient particularity; order for discovery before particulars; leave to file amended pleading.
Legal Topics
Strike Out Application, Particulars, Discovery Before Particulars, Fiduciary Duty, Constructive Trust
Civil Procedure Equity Corporations Law Strike Out Application Particulars Discovery Before Particulars Fiduciary Duty Constructive Trust

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Parties

Eve Lynne Procter

First Applicant

Brenda Maureen Procter

Second Applicant

Evangelo Kalivis

First Respondent

ACN 088 370 996 Pty Ltd

Second Respondent

Patricia Anne Dabrowski

Third Respondent

Timothy John Dabrowski

Fourth Respondent

Berri Developments Pty Ltd (ACN 126 373 939)

Fifth Respondent

Procedural Posture

General Division Civil / Interlocutory Applications to Strike Out Parts of Statement of Claim and for Discovery Before Particulars

Legal Issues

  1. 1 Whether provisions of the statement of claim should be struck out for insufficient particularity, embarrassment or failure to disclose reasonable cause of action
  2. 2 Whether further particulars can be ordered before defence is filed
  3. 3 Whether discovery before particulars can be ordered in cases involving breach of fiduciary duty

Ratio Decidendi

Discovery before particulars was appropriate due to fiduciary duty relationships and the respondents' possession of relevant information; provisions of statement of claim lacking sufficient particularity (specifically failing to plead how constructive trust arose) warranted striking out; but the entire statement of claim was not struck out as deficiencies were not sufficient to justify such order.

Court Disposition

Provisions of statement of claim struck out for insufficient particularity; order for discovery before particulars; leave to file amended pleading.

Orders

  • Respondents to make discovery of documents in terms of paragraph 1 of applicants' amended notice of motion.
  • Applicants to have leave to file an amended statement of claim.