Cassisi, L. & F. v C.F.C. Holdings Pty Ltd [1988] FCA 339

Cassisi, L. & F. v C.F.C. Holdings Pty Ltd [1988] FCA 339

The amended statement of claim was not so clearly untenable, embarrassing, or deficient as to warrant striking out: supply to Esanda was not necessary to any pleaded cause of action; paragraph 7 sufficiently pleaded facts capable of supporting a collateral contract; the alleged duty of care was not shown by binding authority to be untenable; and the pleading contained enough factual material to indicate how the applicants claimed loss and damage from the alleged representations and lease transaction.

Jurisdiction
Australia
Judgment Date
29 April 1988
Procedural Posture
Motion to Strike Out Amended Statement of Claim / Ex Tempore Reasons for Judgment
Outcome
Motion dismissed.
Legal Topics
['strike Out of Pleadings' 'collateral Contract' 'pre Contractual Representations and Warranties' 'duty of Care' 'misleading and Deceptive Conduct' 'causation and Damages']
['civil Procedure' 'contract Law' 'negligence' 'trade Practices'] ['strike Out of Pleadings' 'collateral Contract' 'pre Contractual Representations and Warranties' 'duty of Care' 'misleading and Deceptive Conduct' 'causation and Damages']

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Procedural Posture

Motion to Strike Out Amended Statement of Claim / Ex Tempore Reasons for Judgment

Legal Issues

  1. 1 ['Whether the amended statement of claim should be struck out under O.11 r.16.' 'Whether the pleading failed because it did not expressly allege that the respondent supplied the truck to Esanda.' 'Whether the pleaded representations and warranties were embarrassing because no contract with the applicants was clearly identified.' 'Whether the alleged duty of care was so clearly untenable that it should be struck out.' 'Whether the pleading sufficiently alleged causal connection between the alleged misleading and deceptive conduct and loss or damage.']

Ratio Decidendi

The amended statement of claim was not so clearly untenable, embarrassing, or deficient as to warrant striking out: supply to Esanda was not necessary to any pleaded cause of action; paragraph 7 sufficiently pleaded facts capable of supporting a collateral contract; the alleged duty of care was not shown by binding authority to be untenable; and the pleading contained enough factual material to indicate how the applicants claimed loss and damage from the alleged representations and lease transaction.

Court Disposition

Motion dismissed.

Orders

  • ['The motion will be dismissed.' "The respondent is to pay the applicants' costs of motion save for those incurred at the appearance on 27 April 1988."]