Novamaze Pty Ltd & Ors v Cut Price Deli Pty Ltd & Ors [1995] FCA 117

Novamaze Pty Ltd & Ors v Cut Price Deli Pty Ltd & Ors [1995] FCA 117

The objection that individual representations were pleaded as isolated and vague was unfounded; the statement of claim ties together the various representations and asserts reliance on all as inducing the applicants' conduct. The respondents’ technical arguments did not warrant striking out the claim, and the motion (particularly the part alleging improper use of a document) was not justified.

Parties
First Applicant: Novamaze Pty. Ltd.; Second Applicants: Darryl Paul Weedman and Elaine Margaret Weedman; First Respondent: Cut Price Deli Pty. Limited; Second Respondent: Enzo Sgambellone; Third Respondent: Luzette McKenzie; Fourth Respondent: Berne No.7 Pty. Ltd.; Fifth Respondents: Russell Gordon Donald and Vivian Anne Donald
Jurisdiction
Australia
Judgment Date
03 March 1995
Procedural Posture
Application to Strike Out Statement of Claim / Interlocutory Motion Decision
Outcome
First to third respondents' motion to strike out dismissed with costs
Legal Topics
Striking Out Pleadings, Indemnity Costs, Contempt, Objectivity of Legal Advisers, Misleading or Deceptive Conduct
Practice and Procedure Striking Out Pleadings Indemnity Costs Contempt Objectivity of Legal Advisers Misleading or Deceptive Conduct

Case Brief

Summary, issues, holding and outcome

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Parties

Novamaze Pty. Ltd.

First Applicant

Darryl Paul Weedman and Elaine Margaret Weedman

Second Applicants

Cut Price Deli Pty. Limited

First Respondent

Enzo Sgambellone

Second Respondent

Luzette McKenzie

Third Respondent

Berne No.7 Pty. Ltd.

Fourth Respondent

Russell Gordon Donald and Vivian Anne Donald

Fifth Respondents

Procedural Posture

Application to Strike Out Statement of Claim / Interlocutory Motion Decision

Legal Issues

  1. 1 Whether the applicants’ statement of claim should be struck out as against the first to third respondents
  2. 2 Whether technical objections to the pleadings are substantiated
  3. 3 Whether part of the respondents' motion was improperly brought justifying indemnity costs

Ratio Decidendi

The objection that individual representations were pleaded as isolated and vague was unfounded; the statement of claim ties together the various representations and asserts reliance on all as inducing the applicants' conduct. The respondents’ technical arguments did not warrant striking out the claim, and the motion (particularly the part alleging improper use of a document) was not justified.

Court Disposition

First to third respondents' motion to strike out dismissed with costs

Orders

  • The first to third respondents' motion be dismissed.
  • The first to third respondents pay the applicants' costs of and incidental to that motion, including reserved costs, to be taxed with respect to the issue contained in proposition 3 on an indemnity basis, but otherwise on a party and party basis.