Allen v Birdanco Nominees Pty Ltd [2015] FCA 1501

Allen v Birdanco Nominees Pty Ltd [2015] FCA 1501

The respondent did not satisfy the threshold for striking out the challenged pleadings or for obtaining further particulars. Read as a whole, the Statement of Claim gave adequate notice of the applicants' case and did not create the kind of prejudice required by rr 16.21 or 16.45: paragraph 9 sufficiently identified a waiver contention concerning the finance condition; paragraph 14 was properly understood as alleging a duty to exercise reasonable skill and care in providing valuation advice; paragraph 21 had a pleaded factual basis for reliance on the Australian Consumer Law consumer guarantees; paragraph 23 sufficiently identified the professional duty, alleged negligent misstatements...

Jurisdiction
Australia
Judgment Date
17 December 2015
Procedural Posture
Practice and Procedure: Pleadings and Non Party Discovery / Interlocutory Application to Strike Out Parts of the Statement of Claim or Obtain Further and Better Particulars; Non Party Discovery Application by Consent
Outcome
Respondent's interlocutory application dismissed; applicants' application for non-party discovery by the Light Regional Council allowed by consent.
Legal Topics
['strike Out of Pleadings' 'further and Better Particulars' 'implied Contractual Terms' 'statutory Guarantees for Services' 'professional Negligence' 'negligent Misstatement' 'non Party Discovery']
['practice and Procedure' 'contract' 'australian Consumer Law' 'negligence'] ['strike Out of Pleadings' 'further and Better Particulars' 'implied Contractual Terms' 'statutory Guarantees for Services' 'professional Negligence' 'negligent Misstatement' 'non Party Discovery']

Case Brief

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Procedural Posture

Practice and Procedure: Pleadings and Non Party Discovery / Interlocutory Application to Strike Out Parts of the Statement of Claim or Obtain Further and Better Particulars; Non Party Discovery Application by Consent

Legal Issues

  1. 1 ['Whether paragraphs of the Statement of Claim should be struck out under r 16.21 of the Federal Court Rules 2011 (Cth).' 'Whether further and better particulars should be ordered under r 16.45 of the Federal Court Rules 2011 (Cth).' "Whether the applicants' pleading of an implied term concerning waiver of a finance condition was ambiguous, evasive or embarrassing." 'Whether the pleading of implied terms in the valuation agreement, statutory guarantees, negligent misstatement, reliance and loss gave the respondent fair notice of the case.' 'Whether the Light Regional Council should make discovery of documents concerning the Proposed Supermarket Development.']

Ratio Decidendi

The respondent did not satisfy the threshold for striking out the challenged pleadings or for obtaining further particulars. Read as a whole, the Statement of Claim gave adequate notice of the applicants' case and did not create the kind of prejudice required by rr 16.21 or 16.45: paragraph 9 sufficiently identified a waiver contention concerning the finance condition; paragraph 14 was properly understood as alleging a duty to exercise reasonable skill and care in providing valuation advice; paragraph 21 had a pleaded factual basis for reliance on the Australian Consumer Law consumer guarantees; paragraph 23 sufficiently identified the professional duty, alleged negligent misstatements...

Court Disposition

Respondent's interlocutory application dismissed; applicants' application for non-party discovery by the Light Regional Council allowed by consent.

Orders

  • ['The Light Regional Council ("the Council") make discovery by filing and serving a list of the following documents in its custody, possession or power by Friday 26 February 2016: (a) All development applications under the Development Act 1993 lodged with the Council (including all records, notes, communications...