Brown, D.A. & Ors v Forest Hill Shopping Centre Pty Ltd & Ors [1995] FCA 614

Brown, D.A. & Ors v Forest Hill Shopping Centre Pty Ltd & Ors [1995] FCA 614

Paragraph 5A was clearly untenable because the proposed implied term to take reasonable steps to prevent another donut business was no more arguable than the earlier implied term rejected by Heerey J. Paragraphs 5B and 5D did not raise an arguable tort claim because clause 19 did not contemplate the asserted exclusivity and the grant of the Keatsville lease was not a breach of clause 19; paragraphs 5C and 5E therefore fell with them.

Jurisdiction
Australia
Judgment Date
11 August 1995
Procedural Posture
Application to Strike Out Parts of the Applicants' Fourth Amended Statement of Claim / Interlocutory Notice of Motion Filed 8 June 1995
Outcome
Strike out application allowed with costs.
Legal Topics
['striking Out Pleadings' 'no Triable Issue' 'no Arguable Claim' 'clearly Untenable Claim' 'implied Terms' 'duty of Care' 'lease Exclusivity']
['practice and Procedure' 'pleadings' 'contract' 'negligence' 'leases'] ['striking Out Pleadings' 'no Triable Issue' 'no Arguable Claim' 'clearly Untenable Claim' 'implied Terms' 'duty of Care' 'lease Exclusivity']

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Procedural Posture

Application to Strike Out Parts of the Applicants' Fourth Amended Statement of Claim / Interlocutory Notice of Motion Filed 8 June 1995

Legal Issues

  1. 1 ['Whether paragraphs 5A, 5B, 5C, 5D and 5E of the Fourth Amended Statement of Claim disclosed an arguable case or should be struck out.' 'Whether an implied term requiring the first respondent to take reasonable steps to prevent another donut business operating in the shopping centre was arguable.' 'Whether a pleaded duty of care to monitor and take reasonable steps to protect alleged exclusivity under clause 19 of the lease was arguable.' 'Whether the tests of no triable issue, no arguable claim and clearly untenable claim differed materially for the purposes of the strike out application.']

Ratio Decidendi

Paragraph 5A was clearly untenable because the proposed implied term to take reasonable steps to prevent another donut business was no more arguable than the earlier implied term rejected by Heerey J. Paragraphs 5B and 5D did not raise an arguable tort claim because clause 19 did not contemplate the asserted exclusivity and the grant of the Keatsville lease was not a breach of clause 19; paragraphs 5C and 5E therefore fell with them.

Court Disposition

Strike out application allowed with costs.

Orders

  • ["Paragraphs 5A, 5B, 5C and 5E of the Applicants' Fourth Amended Statement of Claim filed 18 August 1994 be struck out." "The Applicants pay the Respondents' costs of the Notice of Motion filed 8 June 1995."]