Sebastian v Strongwall International Limited (Deregistered) (No 3) [2012] FCA 474

Sebastian v Strongwall International Limited (Deregistered) (No 3) [2012] FCA 474

The ownership representation remained a live issue notwithstanding admissions or acknowledgments about Strongwall's ownership, and the patents value and Deloitte representations were not unarguable when the pleading was read as a whole. However, the commercialisation representation was deficient because no material fact was pleaded as to the time by which commercialisation was to occur; the market representation in its current form did not articulate a nexus between the alleged breach and deregistration as the point of first loss; and the continuing representation plea did not clearly plead material facts, particularly if it was intended to allege misrepresentation by silence. Those...

Jurisdiction
Australia
Judgment Date
08 May 2012
Procedural Posture
Application Pursuant to R 16.21 Federal Court Rules 2011 to Strike Out Paragraphs of Statement of Claim / Interlocutory Strike Out Application
Outcome
Strike out application allowed in part.
Legal Topics
['strike Out Pleadings' 'material Facts' 'representations' 'continuing Representations' 'limitation Period' 'intellectual Property Ownership']
['practice and Procedure' 'pleadings' 'misleading or Deceptive Conduct' 'corporations'] ['strike Out Pleadings' 'material Facts' 'representations' 'continuing Representations' 'limitation Period' 'intellectual Property Ownership']

Case Brief

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Procedural Posture

Application Pursuant to R 16.21 Federal Court Rules 2011 to Strike Out Paragraphs of Statement of Claim / Interlocutory Strike Out Application

Legal Issues

  1. 1 ["Whether the ownership representation should be struck out on the basis that there was no triable issue because Mr Hanna acknowledged Strongwall's ownership of the patents and intellectual property." 'Whether the patents value representation and Deloitte representation sufficiently pleaded a representation adopted and made by Mr Hanna.' 'Whether the commercialisation representation should be struck out because no time period for commercialisation was pleaded.' 'Whether the market representation should be struck out or re-pleaded because the alleged nine month period had expired long before the proceedings and no nexus was pleaded between the breach and deregistration as the first loss.' 'Whether the continuing representations were embarrassing or deficient because material facts, dates or the alleged misrepresentation by silence were not clearly articulated.']

Ratio Decidendi

The ownership representation remained a live issue notwithstanding admissions or acknowledgments about Strongwall's ownership, and the patents value and Deloitte representations were not unarguable when the pleading was read as a whole. However, the commercialisation representation was deficient because no material fact was pleaded as to the time by which commercialisation was to occur; the market representation in its current form did not articulate a nexus between the alleged breach and deregistration as the point of first loss; and the continuing representation plea did not clearly plead material facts, particularly if it was intended to allege misrepresentation by silence. Those...

Court Disposition

Strike out application allowed in part.

Orders

  • ["Paragraphs 17(iv), 17(v) and 19 of the applicants' statement of claim filed on 22 August 2011 be struck out." 'The applicants have leave to file an amended statement of claim within 28 days.']