Fernandez v Glev Pty Ltd [2000] FCA 1859

Fernandez v Glev Pty Ltd [2000] FCA 1859

The Court refused at this stage to strike out the contractual pleading in paragraphs 1-16 and declined to determine the fiduciary relationship issue on the strike out application. However, paragraphs 18-24 alleging misleading or deceptive conduct were struck out because they were confusing, embarrassing, insufficiently particularised, failed adequately to explain the alleged inaccuracy of representations, did not clearly connect representations to loss, and did not clearly plead timing, reliance, damage or future representations. Paragraph 25 was struck out because accessorial liability was pleaded without the facts necessary to support involvement and knowledge. Paragraph 26 was struck...

Jurisdiction
Australia
Judgment Date
20 December 2000
Procedural Posture
Notice of Motion to Strike Out the Application and Statement of Claim Under Order 11 Rule 16 of the Federal Court Rules / Interlocutory Strike Out Application
Outcome
Motion allowed in part; paragraphs 18-24, 25, 26 and 27 of the Statement of Claim struck out with leave to replead; leave granted to substitute Glev Franchises Pty Ltd as first respondent.
Legal Topics
['strike Out of Pleadings' 'accrued Jurisdiction' 'breach of Franchise Agreement' 'fiduciary Relationship' 'misleading or Deceptive Conduct' 'accessorial Liability' 'unconscionable Conduct' 'limitation Period' 'pleadings and Particulars']
['practice and Procedure' 'contract' 'trade Practices' 'franchising' 'equity'] ['strike Out of Pleadings' 'accrued Jurisdiction' 'breach of Franchise Agreement' 'fiduciary Relationship' 'misleading or Deceptive Conduct' 'accessorial Liability' 'unconscionable Conduct' 'limitation Period' 'pleadings and Particulars']

Case Brief

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Procedural Posture

Notice of Motion to Strike Out the Application and Statement of Claim Under Order 11 Rule 16 of the Federal Court Rules / Interlocutory Strike Out Application

Legal Issues

  1. 1 ['Whether the contract claim was within the accrued jurisdiction of the Federal Court.' 'Whether paragraphs 1-16 of the Statement of Claim alleging breach of the franchise agreement should be struck out.' 'Whether it was appropriate on a strike out application to determine whether the pleaded matters founded a fiduciary relationship.' 'Whether the misleading or deceptive conduct pleading was embarrassing, insufficiently particularised, or failed to connect alleged representations with loss or damage.' 'Whether limitation issues under the Trade Practices Act 1974 (Cth) justified striking out the misleading or deceptive conduct claim without leave to replead.' 'Whether the pleading of accessorial liability against the second to fifth respondents under s 75B of the Trade Practices Act 1974 (Cth) was sufficient.' 'Whether the unconscionable conduct pleading under s 51AC of the Trade Practices Act 1974 (Cth) improperly relied on conduct occurring before the section commenced.']

Ratio Decidendi

The Court refused at this stage to strike out the contractual pleading in paragraphs 1-16 and declined to determine the fiduciary relationship issue on the strike out application. However, paragraphs 18-24 alleging misleading or deceptive conduct were struck out because they were confusing, embarrassing, insufficiently particularised, failed adequately to explain the alleged inaccuracy of representations, did not clearly connect representations to loss, and did not clearly plead timing, reliance, damage or future representations. Paragraph 25 was struck out because accessorial liability was pleaded without the facts necessary to support involvement and knowledge. Paragraph 26 was struck...

Court Disposition

Motion allowed in part; paragraphs 18-24, 25, 26 and 27 of the Statement of Claim struck out with leave to replead; leave granted to substitute Glev Franchises Pty Ltd as first respondent.

Orders

  • ['Leave be granted to the applicants to amend the proceedings by substituting Glev Franchises Pty Ltd as first respondent.' 'Paragraphs 18-24, 25, 26 and 27 of the Statement of Claim be struck out, with leave to replead.' 'The applicants be granted leave to file an Amended Statement of Claim by 5 February 2001.' 'If...