B J McAdam Pty Limited v Jax Tyres Pty Limited (No 5) [2014] FCA 358

B J McAdam Pty Limited v Jax Tyres Pty Limited (No 5) [2014] FCA 358

The Plaintiffs' Reply pleaded a case inconsistent with the case in chief, contrary to Rule 16.06 of the Federal Court Rules 2011 (Cth). Therefore, paragraph 2 of the Plaintiffs' Reply should be struck out, and the Plaintiffs should be prevented from adducing evidence in support of the inconsistent case.

Parties
First Plaintiff: B J McAdam Pty Limited ACN 000 288 639; Second Plaintiff: Anthony Bruce McAdam and Marcus Dominic McAdam as Executors of the Estate of Bruce James McAdam; Third Plaintiff: Merim Holdings Pty Ltd ACN 112 224 807; Fourth Plaintiff: Shirley Marlene McAdam; First Defendant: Jax Tyres Pty Limited ACN 000 955 840; Second Defendant: Jax Franchising Systems Pty Limited ACN 060 109 891; Third Defendant: Jax Tyres Investments Pty Limited ACN 112 266 832; Fourth Defendant: Ian Frederick Hurrell; Fifth Defendant: Vakofa Pty Limited ACN 003 318 625; Ninth Defendant: Chylos Pty Limited ACN 001 402 562; Tenth Defendant: Valnock Pty Limited ACN 010 596 077; Eleventh Defendant: Jax Tyres Finance Pty Limited ACN 112 213 895; Twelfth Defendant: Jeffrey David Board; Thirteenth Defendant: Valedon Holdings Pty Limited; Fourteenth Defendant: Grayen Holdings Pty Limited
Jurisdiction
Australia
Judgment Date
08 April 2014
Procedural Posture
Civil / Interlocutory Application to Strike Out Part of Plaintiffs' Reply
Outcome
Application granted; paragraph 2 of the Reply struck out; Plaintiffs prevented from adducing certain evidence; Plaintiffs ordered to pay costs.
Legal Topics
Striking Out Pleadings, Inconsistent Pleadings, Pleading Requirements
Practice and Procedure Striking Out Pleadings Inconsistent Pleadings Pleading Requirements

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Parties

B J McAdam Pty Limited ACN 000 288 639

First Plaintiff

Anthony Bruce McAdam and Marcus Dominic McAdam as Executors of the Estate of Bruce James McAdam

Second Plaintiff

Merim Holdings Pty Ltd ACN 112 224 807

Third Plaintiff

Shirley Marlene McAdam

Fourth Plaintiff

Jax Tyres Pty Limited ACN 000 955 840

First Defendant

Jax Franchising Systems Pty Limited ACN 060 109 891

Second Defendant

Jax Tyres Investments Pty Limited ACN 112 266 832

Third Defendant

Ian Frederick Hurrell

Fourth Defendant

Vakofa Pty Limited ACN 003 318 625

Fifth Defendant

Chylos Pty Limited ACN 001 402 562

Ninth Defendant

Valnock Pty Limited ACN 010 596 077

Tenth Defendant

Jax Tyres Finance Pty Limited ACN 112 213 895

Eleventh Defendant

Jeffrey David Board

Twelfth Defendant

Valedon Holdings Pty Limited

Thirteenth Defendant

Grayen Holdings Pty Limited

Fourteenth Defendant

Procedural Posture

Civil / Interlocutory Application to Strike Out Part of Plaintiffs' Reply

Legal Issues

  1. 1 Whether paragraph 2 of the Plaintiffs' Reply should be struck out for pleading inconsistent cases
  2. 2 Whether Plaintiffs should be prevented from adducing evidence in support of the struck out pleading

Ratio Decidendi

The Plaintiffs' Reply pleaded a case inconsistent with the case in chief, contrary to Rule 16.06 of the Federal Court Rules 2011 (Cth). Therefore, paragraph 2 of the Plaintiffs' Reply should be struck out, and the Plaintiffs should be prevented from adducing evidence in support of the inconsistent case.

Court Disposition

Application granted; paragraph 2 of the Reply struck out; Plaintiffs prevented from adducing certain evidence; Plaintiffs ordered to pay costs.

Orders

  • Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), paragraph 2 of the Plaintiffs' Reply filed 24 October 2013 be struck out.
  • The Plaintiffs are not to rely upon paragraphs 94 to 115 and 183 to 219 of the affidavit of Mr Marcus McAdam sworn 25 October 2013, together with any exhibited documents referred to in those paragraphs (unless such documents are referred to in other paragraphs of that affidavit), at the hearing of these proceedings.