Clark v Auspicious Yacht Sales Pty Limited & Ors; Gibbs & Anor v Auspicious Yacht Sales Pty Limited & Ors [2006] NSWSC 37

Clark v Auspicious Yacht Sales Pty Limited & Ors; Gibbs & Anor v Auspicious Yacht Sales Pty Limited & Ors [2006] NSWSC 37

Service was set aside because the amended ordinary statement of claim made only a bare allegation of agency and deemed conduct, did not plead the prescribed ingredients that the alleged conduct occurred within the scope of actual or apparent authority, failed to allege a cause of action against the fourth defendant, and did not demonstrate that the functional jurisdictional requirements of Schedule 6 to the Rules were met. Even if the plaintiffs' additional material were considered, it did not support an allegation that the alleged misrepresentations were made within the scope of authority, and the fourth defendant discharged its onus for relief.

Jurisdiction
Australia
Judgment Date
13 February 2006
Procedural Posture
Application by Notice of Motion to Set Aside Service of Process on the Fourth Defendant in Florida / Contested Application Heard on 7 February 2006 After Proceedings Were Removed From the District Court to the Supreme Court of New South Wales
Outcome
Service of the amended ordinary statement of claim on the fourth defendant was set aside.
Legal Topics
['application to Set Aside Service' 'pleading of Material Facts' 'agency and Deemed Conduct by Body Corporate' 'jurisdictional Requirements for Service Outside Australia' 'misrepresentation']
['civil Procedure' 'service Outside Jurisdiction' 'trade Practices' 'fair Trading'] ['application to Set Aside Service' 'pleading of Material Facts' 'agency and Deemed Conduct by Body Corporate' 'jurisdictional Requirements for Service Outside Australia' 'misrepresentation']

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Procedural Posture

Application by Notice of Motion to Set Aside Service of Process on the Fourth Defendant in Florida / Contested Application Heard on 7 February 2006 After Proceedings Were Removed From the District Court to the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether service of the amended ordinary statement of claim on the fourth defendant in Florida should be set aside under rule 11.7 of the Uniform Civil Procedure Rules 2005.' 'Whether the pleading against the fourth defendant alleged the material facts necessary to found a cause of action based on agency and s84 of the Trade Practices Act.' 'Whether the pleading demonstrated the jurisdictional requirements for service outside the jurisdiction, including the requirements of Schedule 6 to the Rules.' 'Whether material outside the pleading could be relied on to rectify defects in the pleading.' 'Which party bore the onus on the application to set aside service.']

Ratio Decidendi

Service was set aside because the amended ordinary statement of claim made only a bare allegation of agency and deemed conduct, did not plead the prescribed ingredients that the alleged conduct occurred within the scope of actual or apparent authority, failed to allege a cause of action against the fourth defendant, and did not demonstrate that the functional jurisdictional requirements of Schedule 6 to the Rules were met. Even if the plaintiffs' additional material were considered, it did not support an allegation that the alleged misrepresentations were made within the scope of authority, and the fourth defendant discharged its onus for relief.

Court Disposition

Service of the amended ordinary statement of claim on the fourth defendant was set aside.

Orders

  • ['The service of the amended ordinary statement of claim on the fourth defendant is set aside.' "The plaintiffs are to pay the fourth defendant's costs of the notice of motion." 'The exhibit may be returned.']