Olson v Keefe (No 3) [2018] FCA 2001

Olson v Keefe (No 3) [2018] FCA 2001

Leave to file the FASOC was refused because the unconscionability claims did not disclose a reasonable cause of action, arose no higher than conclusory assertion, and were either inapplicable (s 21 ACL) or inadequately pleaded (s 20 ACL); the profit interest and additional implied terms claims were similarly either precluded by prior orders, held to be vague, unnecessary, or not properly particularised; defects could not be cured by further re-pleading in the circumstances, and the document as a whole was not suitable for filing.

Parties
Applicant: Kevin Olson; First Respondent: Michael Thomas Keefe; Second Respondent: Cory Lipoff; Third Respondent: Hilco Merchant Resources LLC; Fourth Respondent: Hilco Merchant Australia Pty Ltd ACN 150 215 875
Jurisdiction
Australia
Judgment Date
18 December 2018
Procedural Posture
Application for Leave to Amend Pleadings in Pending Employment Related Proceeding / Interlocutory Application for Leave to File Further Amended Statement of Claim
Outcome
Leave to file Further Amended Statement of Claim refused. Costs to the respondents.
Legal Topics
Pleadings, Summary Dismissal, Implied Terms, Unconscionable Conduct, Costs
Practice and Procedure Employment Law Pleadings Summary Dismissal Implied Terms Unconscionable Conduct Costs

Case Brief

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Parties

Kevin Olson

Applicant

Michael Thomas Keefe

First Respondent

Cory Lipoff

Second Respondent

Hilco Merchant Resources LLC

Third Respondent

Hilco Merchant Australia Pty Ltd ACN 150 215 875

Fourth Respondent

Procedural Posture

Application for Leave to Amend Pleadings in Pending Employment Related Proceeding / Interlocutory Application for Leave to File Further Amended Statement of Claim

Legal Issues

  1. 1 Whether leave should be granted to file a further amended statement of claim including claims of unconscionability, profit interest, implied terms, and statutory contraventions under the Corporations Act

Ratio Decidendi

Leave to file the FASOC was refused because the unconscionability claims did not disclose a reasonable cause of action, arose no higher than conclusory assertion, and were either inapplicable (s 21 ACL) or inadequately pleaded (s 20 ACL); the profit interest and additional implied terms claims were similarly either precluded by prior orders, held to be vague, unnecessary, or not properly particularised; defects could not be cured by further re-pleading in the circumstances, and the document as a whole was not suitable for filing.

Court Disposition

Leave to file Further Amended Statement of Claim refused. Costs to the respondents.

Orders

  • The applicant be refused leave to file a further amended statement of claim in the draft form provided to the court on 25 June 2018.
  • The applicant pay the costs of the first, third and fourth respondents as agreed or assessed.