Assabgy Holdings Pty Ltd v Reeftye Pty Ltd [2005] FCA 1728

Assabgy Holdings Pty Ltd v Reeftye Pty Ltd [2005] FCA 1728

Paragraphs 28(a) and 28(c) of the Statement of Claim were struck out because the pleaded representations were not supported by the evidence of what was said. The particulars to paragraph 33 were also struck out because the applicant conceded the pleaded damage particulars had been superseded. The Court could not determine whether reliance was fatal to the s 52 claim on the existing pleadings, so the applicant was given liberty to re-plead.

Jurisdiction
Australia
Judgment Date
22 November 2005
Procedural Posture
Proceeding Including Claims for Breach of Contract and Under S 52 of the Trade Practices Act 1974 (cth) / Interlocutory Hearing on Amended Notice of Motion, Including Strike Out, Discovery, Security for Costs and Directions
Outcome
Parts of the Statement of Claim were struck out with liberty to re-plead; procedural directions were made; security for costs was adjourned; and costs orders were made.
Legal Topics
['misleading or Deceptive Conduct' 'pre Contractual Representations' 'strike Out of Pleadings' 'particulars of Damage' 'reliance' 'discovery' 'security for Costs' 'mediation' 'costs']
['trade Practices' 'contract' 'civil Procedure'] ['misleading or Deceptive Conduct' 'pre Contractual Representations' 'strike Out of Pleadings' 'particulars of Damage' 'reliance' 'discovery' 'security for Costs' 'mediation' 'costs']

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Procedural Posture

Proceeding Including Claims for Breach of Contract and Under S 52 of the Trade Practices Act 1974 (cth) / Interlocutory Hearing on Amended Notice of Motion, Including Strike Out, Discovery, Security for Costs and Directions

Legal Issues

  1. 1 ["Whether pleaded representations in paragraphs 28(a) and 28(c) of the Statement of Claim were supported by the evidence of the applicant's principal witness." 'Whether the particulars of damage in paragraph 33 of the Statement of Claim should remain where counsel for the applicant conceded they had been superseded.' 'Whether reliance on pre-contractual representations was fatal to the s 52 claim in light of later amendment of the contractual completion date.' 'Whether consequential directions should be made for discovery, evidence, mediation, security for costs and costs.']

Ratio Decidendi

Paragraphs 28(a) and 28(c) of the Statement of Claim were struck out because the pleaded representations were not supported by the evidence of what was said. The particulars to paragraph 33 were also struck out because the applicant conceded the pleaded damage particulars had been superseded. The Court could not determine whether reliance was fatal to the s 52 claim on the existing pleadings, so the applicant was given liberty to re-plead.

Court Disposition

Parts of the Statement of Claim were struck out with liberty to re-plead; procedural directions were made; security for costs was adjourned; and costs orders were made.

Orders

  • ["Paragraphs 28(a) and (c) and the particulars to paragraph 33 of the applicant's Statement of Claim be struck out." "The applicant have liberty to re-plead those paragraphs within fourteen (14) days from today's date." "The applicant provide discovery in accordance with O 15 r 2 of the Federal Court Rules within...