Burgundy Royal Investments Pty Ltd & Ors v Jonnings Construction Ltd [1988] FCA 353

Burgundy Royal Investments Pty Ltd & Ors v Jonnings Construction Ltd [1988] FCA 353

Certain paragraphs of the Statement of Claim were found deficient, ambiguous, or insufficiently particularised to support a cause of action and were ordered to be struck out, but with leave granted to the applicants to replead in order to cure identified deficiencies and inconsistencies. The remainder of the pleading was not so clearly untenable as to justify summary intervention; those paragraphs thus remain for trial.

Parties
First Applicant: BURGUNDY ROYALE INVESTMENTS PTY. LIMITED; Second Applicant: THE ESPLANADE PTY. LIMITED; Third Applicant: KOTA NOMINEES PTY. LIMITED; Fourth Applicant: GOLDENGLOSS PROPERTIES LIMITED; Respondent: JENNINGS CONSTRUCTION LIMITED
Jurisdiction
Australia
Judgment Date
07 July 1988
Procedural Posture
Application / Interlocutory/summary Application to Strike Out Parts of Pleadings
Outcome
Certain paragraphs struck out with leave to replead; application otherwise dismissed.
Legal Topics
Strike Out of Pleadings, Summary Dismissal, Misleading or Deceptive Conduct, Exclusive Dealing, Trade Practices Act 1974 (cth)
Practice and Procedure Trade Practices Strike Out of Pleadings Summary Dismissal Misleading or Deceptive Conduct Exclusive Dealing Trade Practices Act 1974 (cth)

Case Brief

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Parties

BURGUNDY ROYALE INVESTMENTS PTY. LIMITED

First Applicant

THE ESPLANADE PTY. LIMITED

Second Applicant

KOTA NOMINEES PTY. LIMITED

Third Applicant

GOLDENGLOSS PROPERTIES LIMITED

Fourth Applicant

JENNINGS CONSTRUCTION LIMITED

Respondent

Procedural Posture

Application / Interlocutory/summary Application to Strike Out Parts of Pleadings

Legal Issues

  1. 1 Whether parts of the Further Amended Statement of Claim should be struck out or summarily dismissed under the Federal Court Rules
  2. 2 Proper pleading of allegations of misleading or deceptive conduct under the Trade Practices Act 1974 (Cth) and supporting particulars
  3. 3 Proper basis for summary dismissal/strike out of an action

Ratio Decidendi

Certain paragraphs of the Statement of Claim were found deficient, ambiguous, or insufficiently particularised to support a cause of action and were ordered to be struck out, but with leave granted to the applicants to replead in order to cure identified deficiencies and inconsistencies. The remainder of the pleading was not so clearly untenable as to justify summary intervention; those paragraphs thus remain for trial.

Court Disposition

Certain paragraphs struck out with leave to replead; application otherwise dismissed.

Orders

  • Paragraphs 22, 23, 47, and 51 and the word 'untrue' in paragraph 51B struck out, with leave to replead.
  • Leave granted to replead paragraph 31B so it is consistent with paragraph 51 as repleaded.