Volkov v Kinetic Technology International Pty Ltd [2005] FCA 565

Volkov v Kinetic Technology International Pty Ltd [2005] FCA 565

The claim as pleaded cannot succeed as the beacon's signal was detected and location fixed within one hour, consistent with any alleged representations. No credible case was pleaded or supported on the facts to establish misleading or deceptive conduct; hence, the statement of claim should be struck out, though leave is granted for the applicants to attempt to re-plead with proper verification.

Parties
First Applicant: Viktor Volkov; Second Applicant: Vadim Volkov; Respondent: Kinetic Technology International Pty Ltd
Jurisdiction
Australia
Judgment Date
01 April 2005
Procedural Posture
Civil / Interlocutory Application – Application to Strike Out Statement of Claim
Outcome
Statement of claim struck out; leave to re-plead granted; application adjourned.
Legal Topics
Misleading or Deceptive Conduct, Trade Practices Act 1974 (cth) S 52, Striking Out Pleadings
Trade Practices Consumer Law Misleading or Deceptive Conduct Trade Practices Act 1974 (cth) S 52 Striking Out Pleadings

Case Brief

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Parties

Viktor Volkov

First Applicant

Vadim Volkov

Second Applicant

Kinetic Technology International Pty Ltd

Respondent

Procedural Posture

Civil / Interlocutory Application – Application to Strike Out Statement of Claim

Legal Issues

  1. 1 Whether the respondent made misleading or deceptive representations as to the performance and detection capabilities of a marine distress beacon under s 52 of the Trade Practices Act 1974 (Cth)
  2. 2 Whether the statement of claim disclosed a reasonable cause of action or should be struck out as frivolous, vexatious, or an abuse of process

Ratio Decidendi

The claim as pleaded cannot succeed as the beacon's signal was detected and location fixed within one hour, consistent with any alleged representations. No credible case was pleaded or supported on the facts to establish misleading or deceptive conduct; hence, the statement of claim should be struck out, though leave is granted for the applicants to attempt to re-plead with proper verification.

Court Disposition

Statement of claim struck out; leave to re-plead granted; application adjourned.

Orders

  • The applicants file and serve any proposed amended statement of claim, verified by affidavit, within 21 days, that is on or before 22 April 2005.
  • The application be adjourned to a date to be fixed.