Henderson v McSharer [2013] FCA 414

Procedural Posture

Practice and Procedure; Civil Proceeding Involving Strike Out Application and Application for Mediation and Programming Orders / Interlocutory Applications

Legal Issues

1. 1 ['Whether paragraphs of the substituted statement of claim should be struck out for pleading defects including excessive length, pleading evidence, pleading law, submissions, failure to plead statutory elements, inconsistency with a written agreement, or lack of standing.' 'Whether the alleged collateral contract pleas in paragraphs 21 to 24 should be struck out as inconsistent with the Stock Purchase Agreement.' 'Whether misleading or deceptive conduct and unconscionable conduct claims sufficiently pleaded conduct in trade or commerce and identified the statutory basis relied on.' 'Whether the unjust enrichment claim pleaded the required injustice for retention of the alleged benefit.' 'Whether claims relying on the Crimes Act 1900 (NSW) and fraud should be struck out.' "Whether the applicants' interlocutory application for referral back to mediation and other programming orders should be granted." 'Whether a referral certificate should be issued under R 4.12(1) of the Federal Court Rules 2011 (Cth).']

Ratio Decidendi

The substituted statement of claim was not to be struck out wholesale because, despite its length and some drafting deficiencies by self-represented applicants, it sufficiently identified many issues to be tried. However, paragraphs 35, 42, 46 and 49 were defective because relevant statutory elements or the basis of injustice were not adequately pleaded and were struck out with leave to replead. The fraud allegations relying on the Crimes Act 1900 (NSW) in paragraph 44 commencing with the word "Fraud" to the word "fraud" immediately before paragraph 44.1 and paragraphs 44.1 to 44.7 were struck out because no pleaded conduct connected the matter to New South Wales and no basis was shown...

Court Disposition

Respondents' strike out application partly granted; applicants' interlocutory application dismissed; referral certificate issued; applicants ordered to pay respondents' costs of the respondents' interlocutory application.

Orders

• ['Paragraphs 44 commencing with the word "Fraud" to the word "fraud" immediately before [44.1], as well as paragraphs 44.1 to 44.7 of the substituted statement of claim filed 22 April 2013 be struck out.' 'Paragraphs 35, 42, 46 and 49 also be struck out, but with leave to replead in respect of those paragraphs.'...