Humphries v Newport Quays Stage 2A Pty Ltd (No 2) [2009] FCA 1135

Humphries v Newport Quays Stage 2A Pty Ltd (No 2) [2009] FCA 1135

The alternative s 87 claims were not bound to fail because s 87 confers a wide remedial power that is not limited by common law or equitable rescission principles and may permit orders preventing or reducing loss, including orders analogous to varying contract terms or restricting reliance on contract prices. Accordingly, the respondents' strike out applications concerning the alternative relief paragraphs were refused. Paragraph 56 of Ms Humphries' pleading was struck out with leave to replead because it was vague and ambiguous as to what was conveyed to her and therefore had a tendency to cause embarrassment.

Jurisdiction
Australia
Judgment Date
09 October 2009
Procedural Posture
Practice and Procedure; Notices of Motion to Strike Out Parts of Statements of Claim / Interlocutory Strike Out Applications
Outcome
The first and second respondents' applications to strike out the alternative relief paragraphs were refused; paragraph 56 of Ms Humphries' Further Amended Statement of Claim was struck out with leave to replead.
Legal Topics
['strike Out of Pleadings' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'rescission' 'orders Under S 87 of the Trade Practices Act 1974 (cth)' 'misrepresentation' 'contracts for Land']
['practice and Procedure' 'consumer Protection' 'contract' 'equity' 'real Property'] ['strike Out of Pleadings' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'rescission' 'orders Under S 87 of the Trade Practices Act 1974 (cth)' 'misrepresentation' 'contracts for Land']

Case Brief

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Procedural Posture

Practice and Procedure; Notices of Motion to Strike Out Parts of Statements of Claim / Interlocutory Strike Out Applications

Legal Issues

  1. 1 ['Whether the applicants could plead, in the alternative to rescission, a claim under s 87 of the Trade Practices Act 1974 (Cth) for orders preventing the respondents from relying on contract prices and other contractual rights.' 'Whether the challenged alternative claims for relief disclosed no reasonable cause of action and should be struck out under O 11 r 16 of the Federal Court Rules.' "Whether paragraph 56 of Ms Humphries' Further Amended Statement of Claim was embarrassing because it was vague and ambiguous as to what information was conveyed to her, and how and when it was conveyed."]

Ratio Decidendi

The alternative s 87 claims were not bound to fail because s 87 confers a wide remedial power that is not limited by common law or equitable rescission principles and may permit orders preventing or reducing loss, including orders analogous to varying contract terms or restricting reliance on contract prices. Accordingly, the respondents' strike out applications concerning the alternative relief paragraphs were refused. Paragraph 56 of Ms Humphries' pleading was struck out with leave to replead because it was vague and ambiguous as to what was conveyed to her and therefore had a tendency to cause embarrassment.

Court Disposition

The first and second respondents' applications to strike out the alternative relief paragraphs were refused; paragraph 56 of Ms Humphries' Further Amended Statement of Claim was struck out with leave to replead.

Orders

  • ['SAD 152 of 2008: The application of the first and second respondents to strike out paragraphs 85, 87, 93, 94, 95, 102.2, 102.5, 103, 104, 107, 108.6 and 108.9 is refused.' 'SAD 152 of 2008: The allegation in paragraph 56 of the Further Amended Statement of Claim filed on 13 July 2009 is struck out with leave to...