Citiwest Management Services Pty Ltd v Holzmann, P. & Ors [1987] FCA 710

Citiwest Management Services Pty Ltd v Holzmann, P. & Ors [1987] FCA 710

Paragraphs 5 and 6A were struck out because they were unnecessary to the causes of action and raised distracting false issues; paragraph 7.6 was struck out because the alleged further substantial consideration was unclear and inconsistent with the parallel contractual pleading; paragraph 10.2 was struck out because the alleged WADC payment was not logically connected to any pleaded obligation or clearly caused by the pleaded representations; paragraph 11 was struck out because the circumstances giving rise to an obligation to pay or indemnify were not pleaded; and paragraph 12 was struck out because the facts pleaded to support the duty of care post-dated the alleged negligent...

Jurisdiction
Australia
Judgment Date
30 November 1987
Procedural Posture
Respondents' Motion Under Order 11 R.16 to Strike Out Parts of the Amended Statement of Claim / Ex Tempore Reasons for Judgment on the Respondents' Motion Filed 22 October 1987
Outcome
Respondents' motion allowed in part; specified paragraphs of the amended statement of claim struck out.
Legal Topics
['strike Out Pleadings' 'vague or Embarrassing Pleading' 'no Reasonable Cause of Action' 'misleading or Deceptive Conduct' 'oral Agreement' 'negligent Misstatement' 'quantum Meruit']
['civil Procedure' 'trade Practices' 'contract' 'negligence' 'restitution'] ['strike Out Pleadings' 'vague or Embarrassing Pleading' 'no Reasonable Cause of Action' 'misleading or Deceptive Conduct' 'oral Agreement' 'negligent Misstatement' 'quantum Meruit']

Case Brief

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Procedural Posture

Respondents' Motion Under Order 11 R.16 to Strike Out Parts of the Amended Statement of Claim / Ex Tempore Reasons for Judgment on the Respondents' Motion Filed 22 October 1987

Legal Issues

  1. 1 ['Whether paragraphs of the amended statement of claim should be struck out because they disclosed no reasonable cause of action, had a tendency to cause prejudice, embarrassment or delay, or were otherwise an abuse of process.' 'Whether background allegations in paragraphs 5 and 6A raised false issues and were embarrassing.' 'Whether alleged representations and contractual allegations were sufficiently pleaded to stand or could be addressed by particulars.' 'Whether the pleading adequately connected the alleged payment to WADC and alleged failures to pay or indemnify with the pleaded representations or agreement.' 'Whether pleaded facts could support a duty of care for negligent misstatement.']

Ratio Decidendi

Paragraphs 5 and 6A were struck out because they were unnecessary to the causes of action and raised distracting false issues; paragraph 7.6 was struck out because the alleged further substantial consideration was unclear and inconsistent with the parallel contractual pleading; paragraph 10.2 was struck out because the alleged WADC payment was not logically connected to any pleaded obligation or clearly caused by the pleaded representations; paragraph 11 was struck out because the circumstances giving rise to an obligation to pay or indemnify were not pleaded; and paragraph 12 was struck out because the facts pleaded to support the duty of care post-dated the alleged negligent...

Court Disposition

Respondents' motion allowed in part; specified paragraphs of the amended statement of claim struck out.

Orders

  • ['Paragraphs 5, 6A, 7.6, 10.2, 11 and 12 of the Amended Statement of Claim are struck out.' "The Applicant is to pay the Respondents' costs of the motion."]