Brown, David Arthur & Ors v Forest Hill Shopping Centre Pty Ltd & Ors [1996] FCA 666

Brown, David Arthur & Ors v Forest Hill Shopping Centre Pty Ltd & Ors [1996] FCA 666

The breach of lease claim against Forest Hill was frivolous and vexatious because clause 19 of the lease did not impose the obligation alleged. The rectification claim was bound to fail because the undisputed Deed of Variation required inclusion of the clause later appearing as clause 19, and no rectification of the Deed of Variation was sought. The trade practices pleading against Forest Hill was embarrassing because it did not plead that the alleged representation was false or that the lease had been varied. The breach of contract claim against the second to fourth respondents was vexatious because no supporting facts were pleaded. The limitation challenge to the trade practices claim...

Jurisdiction
Australia
Judgment Date
02 August 1996
Procedural Posture
Trade Practices, Fair Trading Act, Lease Rectification and Breach of Contract Proceeding / Interlocutory Motions to Strike Out, Stay or Dismiss Parts of the Fifth Amended Statement of Claim and Further Amended Application
Outcome
Claims against Forest Hill dismissed; parts of the statement of claim struck out; trade practices claim against the second to fourth respondents allowed to stand; breach of contract claim against the second to fourth respondents dismissed.
Legal Topics
['strike Out of Pleadings' 'frivolous or Vexatious Claims' 'embarrassing Pleadings' 'limitation Period' 'misleading or Deceptive Conduct' 'rectification of Lease' 'breach of Lease' 'breach of Contract']
['civil Procedure' 'trade Practices' 'fair Trading' 'contract' 'leases'] ['strike Out of Pleadings' 'frivolous or Vexatious Claims' 'embarrassing Pleadings' 'limitation Period' 'misleading or Deceptive Conduct' 'rectification of Lease' 'breach of Lease' 'breach of Contract']

Case Brief

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Procedural Posture

Trade Practices, Fair Trading Act, Lease Rectification and Breach of Contract Proceeding / Interlocutory Motions to Strike Out, Stay or Dismiss Parts of the Fifth Amended Statement of Claim and Further Amended Application

Legal Issues

  1. 1 ["Whether the applicants' claim against Forest Hill for breach of lease should be struck out or dismissed as frivolous or vexatious." "Whether the applicants' rectification claim against Forest Hill was tenable in light of the Deed of Variation and the lease terms." 'Whether the trade practices claim against the second to fourth respondents should be struck out as statute-barred at an interlocutory stage.' 'Whether the breach of contract claim against the second to fourth respondents disclosed any pleaded factual basis.' 'Whether the trade practices claim against Forest Hill was embarrassing and should be struck out.']

Ratio Decidendi

The breach of lease claim against Forest Hill was frivolous and vexatious because clause 19 of the lease did not impose the obligation alleged. The rectification claim was bound to fail because the undisputed Deed of Variation required inclusion of the clause later appearing as clause 19, and no rectification of the Deed of Variation was sought. The trade practices pleading against Forest Hill was embarrassing because it did not plead that the alleged representation was false or that the lease had been varied. The breach of contract claim against the second to fourth respondents was vexatious because no supporting facts were pleaded. The limitation challenge to the trade practices claim...

Court Disposition

Claims against Forest Hill dismissed; parts of the statement of claim struck out; trade practices claim against the second to fourth respondents allowed to stand; breach of contract claim against the second to fourth respondents dismissed.

Orders

  • ['Paragraphs 4 to 11 and 17 to 31 of the statement of claim are struck out.' 'All claims against Forest Hill are dismissed.' "The applicants must pay Forest Hill's costs of the motion filed 27 June 1996." 'Paragraphs 1 to 3 and 12 to 16 of the statement of claim will stand.' 'The applicants have their costs of the...