Verge v Devere Holdings Pty Ltd (No 3) [2009] FCA 1260

Verge v Devere Holdings Pty Ltd (No 3) [2009] FCA 1260

Assuming the pleaded facts to be correct, the applicants' pleading was not so obviously untenable as to be unarguable. Taken together, the pleaded knowledge of the applicants' caveated interest, the alleged provision of false information to Castleworld's financier to acquire the Dongara Land, and the failure to notify the applicants could arguably support the pleaded purpose of defeating the applicants' claimed interest. Because an arguable causal link was pleaded between the alleged fraud and the claimed loss of interest, para 9(c) of the reply should not be struck out.

Jurisdiction
Australia
Judgment Date
22 October 2009
Procedural Posture
Practice and Procedure; Application to Strike Out Part of Pleading / Interlocutory Motion to Strike Out Para 9(c) of the Applicants' Reply; Trial Imminent
Outcome
Castleworld's motion to strike out para 9(c) of the applicants' reply was dismissed.
Legal Topics
['strike Out of Pleading' 'no Reasonable Cause of Action' 'indefeasibility of Title' 'statutory Fraud Under the Transfer of Land Act 1893 (wa)' 'caveated Interest in Land']
['practice and Procedure' 'real Property' 'bankruptcy'] ['strike Out of Pleading' 'no Reasonable Cause of Action' 'indefeasibility of Title' 'statutory Fraud Under the Transfer of Land Act 1893 (wa)' 'caveated Interest in Land']

Case Brief

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Procedural Posture

Practice and Procedure; Application to Strike Out Part of Pleading / Interlocutory Motion to Strike Out Para 9(c) of the Applicants' Reply; Trial Imminent

Legal Issues

  1. 1 ["Whether para 9(c) of the applicants' reply, alleging that Castleworld acted fraudulently to procure registration as registered proprietor of the Dongara Land for the purpose of defeating the applicants' claimed interest, should be struck out." 'Whether an alleged fraud by Castleworld against its financier could arguably constitute statutory fraud for the purposes of the indefeasibility provisions of the Transfer of Land Act 1893 (WA), particularly s 68.']

Ratio Decidendi

Assuming the pleaded facts to be correct, the applicants' pleading was not so obviously untenable as to be unarguable. Taken together, the pleaded knowledge of the applicants' caveated interest, the alleged provision of false information to Castleworld's financier to acquire the Dongara Land, and the failure to notify the applicants could arguably support the pleaded purpose of defeating the applicants' claimed interest. Because an arguable causal link was pleaded between the alleged fraud and the claimed loss of interest, para 9(c) of the reply should not be struck out.

Court Disposition

Castleworld's motion to strike out para 9(c) of the applicants' reply was dismissed.

Orders

  • ['The motion be dismissed.' 'The third respondent to pay the costs of the applicants, to be taxed or agreed.']