Clarke, K.E. v. Commonwealth Bank of Australia & Anor [1988] FCA 64

Clarke, K.E. v. Commonwealth Bank of Australia & Anor [1988] FCA 64

Paragraph 19 of the amended statement of claim is struck out to the extent it alleges conduct by Stofer attributable to the First Respondent. Paragraph 20 is struck out as conceded. Other paragraphs, though awkwardly pleaded, arguably support the causes of action and should not be struck out. Striking out is only justified where the case for doing so is plain and demonstrable.

Parties
Applicant: Kevin Edward Clarke; First Respondent: Commonwealth Bank of Australia; Second Respondent: Birds (a firm)
Jurisdiction
Australia
Judgment Date
03 February 1988
Procedural Posture
Civil / Interlocutory – Motion to Strike Out Parts of Pleadings
Outcome
Partially granted motions to strike out certain paragraphs of statement of claim.
Legal Topics
Misleading and Deceptive Conduct, Negligence, Undue Influence, Unconscionable Conduct
Commercial Law Tort Law Misleading and Deceptive Conduct Negligence Undue Influence Unconscionable Conduct

Case Brief

Summary, issues, holding and outcome

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Parties

Kevin Edward Clarke

Applicant

Commonwealth Bank of Australia

First Respondent

Birds (a firm)

Second Respondent

Procedural Posture

Civil / Interlocutory – Motion to Strike Out Parts of Pleadings

Legal Issues

  1. 1 Whether certain paragraphs of the applicant's statement of claim should be struck out for failing to disclose a cause of action
  2. 2 Whether the conduct alleged constitutes misleading and deceptive conduct under s.52 of the Trade Practices Act
  3. 3 Whether the claim in negligence is sufficiently pleaded

Ratio Decidendi

Paragraph 19 of the amended statement of claim is struck out to the extent it alleges conduct by Stofer attributable to the First Respondent. Paragraph 20 is struck out as conceded. Other paragraphs, though awkwardly pleaded, arguably support the causes of action and should not be struck out. Striking out is only justified where the case for doing so is plain and demonstrable.

Court Disposition

Partially granted motions to strike out certain paragraphs of statement of claim.

Orders

  • Paragraph 19 of the amended statement of claim be struck out to the extent that it alleges conduct by Stofer attributable to the First Respondent.
  • Paragraph 20 be struck out.