Mastellone, Frank v Pacific Seven Pty Ltd & Anor [1985] FCA 583

Mastellone, Frank v Pacific Seven Pty Ltd & Anor [1985] FCA 583

The paragraphs were struck out because they did not with sufficient precision plead facts that, if proved, would establish the representations made were false or misleading when made, nor did they sufficiently articulate the factual basis for the alleged absence of belief or reckless indifference, making the pleading embarrassing or not disclosing a cause of action.

Parties
Applicant: Frank Mastellone; First Respondent: Pacific Seven Pty. Limited; Second Respondent: Luisa Amparo Rubio
Jurisdiction
Australia
Judgment Date
15 November 1985
Procedural Posture
Application for Damages / Interlocutory Motion to Strike Out Paragraphs of Amended Statement of Claim
Outcome
Paragraphs 5 and 6 of the amended statement of claim struck out. Costs of the motion awarded to the first respondent. Applicant granted leave to file a further amended statement of claim.
Legal Topics
Misleading or Deceptive Conduct, Pleadings, Practice and Procedure
Trade Practices Misleading or Deceptive Conduct Pleadings Practice and Procedure

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Parties

Frank Mastellone

Applicant

Pacific Seven Pty. Limited

First Respondent

Luisa Amparo Rubio

Second Respondent

Procedural Posture

Application for Damages / Interlocutory Motion to Strike Out Paragraphs of Amended Statement of Claim

Legal Issues

  1. 1 Whether paragraphs 5 and 6 of the amended statement of claim should be struck out as disclosing no cause of action or as embarrassing and lacking particularity

Ratio Decidendi

The paragraphs were struck out because they did not with sufficient precision plead facts that, if proved, would establish the representations made were false or misleading when made, nor did they sufficiently articulate the factual basis for the alleged absence of belief or reckless indifference, making the pleading embarrassing or not disclosing a cause of action.

Court Disposition

Paragraphs 5 and 6 of the amended statement of claim struck out. Costs of the motion awarded to the first respondent. Applicant granted leave to file a further amended statement of claim.

Orders

  • Paragraphs 5 and 6 of amended statement of claim struck out.
  • Applicant to pay the costs of the first respondent of and incidental to the motion.