Auspine Ltd v H S Lawrence & Son Pty Ltd & Anor [1998] FCA 301

Auspine Ltd v H S Lawrence & Son Pty Ltd & Anor [1998] FCA 301

Auspine was entitled as a matter of principle to plead that statements or information true when given became incomplete or untrue because of supervening material changes known to the respondents, creating an obligation to disclose or correct them before settlement. The respondent's principal strike out complaints misconceived the defined use of "the Representations" and failed, although some paragraphs were erroneous or repetitive and required amendment or should not stand. In the exercise of discretion the pleading was not struck out on the main grounds, and the notice of motion was dismissed with leave to file a further amended statement of claim.

Jurisdiction
Australia
Judgment Date
31 March 1998
Procedural Posture
Pleadings; Notice of Motion to Strike Out Sections of Amended Statement of Claim / Interlocutory Application
Outcome
Notice of motion dismissed; leave granted to file and serve a further amended statement of claim; H S Lawrence & Son Pty Ltd ordered to pay 90 per cent of Auspine's costs of the notice of motion.
Legal Topics
['strike Out of Pleadings' 'amended Statement of Claim' 'fraudulent Misrepresentation and Deceit' 'misleading or Deceptive Conduct' 'duty to Correct Statements After Supervening Events' 'discretionary Strike Out Power']
['civil Procedure' 'trade Practices' 'misrepresentation'] ['strike Out of Pleadings' 'amended Statement of Claim' 'fraudulent Misrepresentation and Deceit' 'misleading or Deceptive Conduct' 'duty to Correct Statements After Supervening Events' 'discretionary Strike Out Power']

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Procedural Posture

Pleadings; Notice of Motion to Strike Out Sections of Amended Statement of Claim / Interlocutory Application

Legal Issues

  1. 1 ['Whether specified paragraphs of the amended statement of claim should be struck out because of the use of the defined term "the Representations".' 'Whether Auspine could plead that statements true when made became false or incomplete because of supervening events, giving rise to a duty of disclosure or correction before settlement.' "Whether paragraphs alleging fraudulent misrepresentation, misrepresentation, and misleading or deceptive conduct were defective for failing to plead material facts or for pleading matters inconsistent with Auspine's case." 'Whether repetitive paragraphs in the amended statement of claim served any useful purpose.']

Ratio Decidendi

Auspine was entitled as a matter of principle to plead that statements or information true when given became incomplete or untrue because of supervening material changes known to the respondents, creating an obligation to disclose or correct them before settlement. The respondent's principal strike out complaints misconceived the defined use of "the Representations" and failed, although some paragraphs were erroneous or repetitive and required amendment or should not stand. In the exercise of discretion the pleading was not struck out on the main grounds, and the notice of motion was dismissed with leave to file a further amended statement of claim.

Court Disposition

Notice of motion dismissed; leave granted to file and serve a further amended statement of claim; H S Lawrence & Son Pty Ltd ordered to pay 90 per cent of Auspine's costs of the notice of motion.

Orders

  • ['Leave be granted to the applicant to file and serve a further amended statement of claim within twenty one days of this date in terms substantially consistent with the reasons of the Court this day published.' 'The notice of motion filed herein on behalf of the respondent H S Lawrence & Son Pty Ltd be dismissed.'...