Murphy v Overton Investments Pty Ltd [1999] FCA 689

Murphy v Overton Investments Pty Ltd [1999] FCA 689

The statement of claim was struck out because the material filed did not satisfy s 33H(1)(c) and the pleading of alleged representations and non-disclosures was embarrassing, rolling up numerous individual claims without identifying for each claimant the circumstances, documents and oral communications relied upon. Leave to amend and an adjournment were appropriate, but only on terms that the applicant pay costs thrown away by the adjournment and by any amendment; the proposed condition requiring variation of the Supreme Court payment order was not appropriate.

Jurisdiction
Australia
Judgment Date
18 May 1999
Procedural Posture
Representative Proceeding Under Part IVA of the Federal Court of Australia Act 1976 Seeking Damages and Other Relief / Respondent's Amended Notice of Motion Seeking Dismissal, Stay, Non Continuance as a Part IVA Proceeding, Declaration, or Transfer; Statement of Claim Struck Out With Leave to Amend
Outcome
Statement of claim struck out; leave granted to file an amended statement of claim and amended application; respondent's amended notice of motion stood over; costs orders made against the applicant.
Legal Topics
['part IVA Representative Proceedings' 'pleading Requirements' 'common Questions of Law or Fact' 'misleading or Deceptive Conduct' 'estoppel' 'costs Thrown Away' 'cross Vesting Transfer Application']
['civil Procedure' 'representative Proceedings' 'trade Practices' 'contracts' 'estoppel' 'retirement Village Disputes'] ['part IVA Representative Proceedings' 'pleading Requirements' 'common Questions of Law or Fact' 'misleading or Deceptive Conduct' 'estoppel' 'costs Thrown Away' 'cross Vesting Transfer Application']

Case Brief

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Procedural Posture

Representative Proceeding Under Part IVA of the Federal Court of Australia Act 1976 Seeking Damages and Other Relief / Respondent's Amended Notice of Motion Seeking Dismissal, Stay, Non Continuance as a Part IVA Proceeding, Declaration, or Transfer; Statement of Claim Struck Out With Leave to Amend

Legal Issues

  1. 1 ['Whether the proceeding could properly continue as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 on the material filed.' 'Whether the statement of claim sufficiently specified the questions of law or fact common to the claims of group members as required by s 33H.' 'Whether the pleading of alleged representations and failures to disclose was embarrassing because it rolled up numerous individual allegations into single paragraphs.' 'Whether any adjournment to permit amendment should be granted on terms as to costs or on a condition requiring an application to vary the Supreme Court stay orders.']

Ratio Decidendi

The statement of claim was struck out because the material filed did not satisfy s 33H(1)(c) and the pleading of alleged representations and non-disclosures was embarrassing, rolling up numerous individual claims without identifying for each claimant the circumstances, documents and oral communications relied upon. Leave to amend and an adjournment were appropriate, but only on terms that the applicant pay costs thrown away by the adjournment and by any amendment; the proposed condition requiring variation of the Supreme Court payment order was not appropriate.

Court Disposition

Statement of claim struck out; leave granted to file an amended statement of claim and amended application; respondent's amended notice of motion stood over; costs orders made against the applicant.

Orders

  • ['The statement of claim filed on 23 February 1999 be struck out.' 'Leave be given to the applicant to file an amended statement of claim and an amended application no later than 8 June 1999.' 'The respondent file a defence to any such amended statement of claim no later than 22 June 1999.' 'The amended notice of...