Nagy, G.M & Anor v Masters Dairy Ltd [1995] FCA 482

Nagy, G.M & Anor v Masters Dairy Ltd [1995] FCA 482

Paragraphs 3 and 5 of the amended statement of claim did not plead material facts relevant to a contract cause of action and were struck out, but the pleaded letter was not incapable of argument as an offer and the contract claim was not shown to disclose no reasonable cause of action, so summary judgment on that cause was not warranted. The s52 Trade Practices Act pleadings were wholly embarrassing because the conduct alleged centred on the exercise of the legal right of an offeror to withdraw an offer at any time before acceptance without notice, and no facts were pleaded that could make reasonable an expectation of notice or amount to an option.

Jurisdiction
Australia
Judgment Date
10 July 1995
Procedural Posture
Application to Strike Out Parts of an Amended Statement of Claim and for Summary Judgment / Interlocutory Motion
Outcome
Respondent's motion allowed in part; paragraphs 3, 5, 10, 11, 12 and 13 of the applicants' statement of claim struck out, with costs to the respondent.
Legal Topics
['pleadings' 'strike Out' 'summary Judgment' 'offer and Acceptance' 'revocation of Offer' 'misleading and Deceptive Conduct' 'silence and Disclosure']
['practice and Procedure' 'contract' 'trade Practices'] ['pleadings' 'strike Out' 'summary Judgment' 'offer and Acceptance' 'revocation of Offer' 'misleading and Deceptive Conduct' 'silence and Disclosure']

Case Brief

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Procedural Posture

Application to Strike Out Parts of an Amended Statement of Claim and for Summary Judgment / Interlocutory Motion

Legal Issues

  1. 1 ["Whether paragraphs of the applicants' amended statement of claim should be struck out under O11 r16 of the Federal Court Rules as embarrassing or not disclosing material facts." 'Whether summary judgment should be entered under O20 r2 of the Federal Court Rules in respect of the contract cause of action.' "Whether the respondent's letter was incapable of being pleaded as an offer or was arguably capable of constituting an offer." 'Whether particulars could remedy deficiencies in the pleading.' 'Whether the pleadings alleging misleading and deceptive conduct under s52 of the Trade Practices Act disclosed a reasonable expectation that the respondent would give notice before withdrawing an offer.']

Ratio Decidendi

Paragraphs 3 and 5 of the amended statement of claim did not plead material facts relevant to a contract cause of action and were struck out, but the pleaded letter was not incapable of argument as an offer and the contract claim was not shown to disclose no reasonable cause of action, so summary judgment on that cause was not warranted. The s52 Trade Practices Act pleadings were wholly embarrassing because the conduct alleged centred on the exercise of the legal right of an offeror to withdraw an offer at any time before acceptance without notice, and no facts were pleaded that could make reasonable an expectation of notice or amount to an option.

Court Disposition

Respondent's motion allowed in part; paragraphs 3, 5, 10, 11, 12 and 13 of the applicants' statement of claim struck out, with costs to the respondent.

Orders

  • ["Paragraphs 3, 5, 10, 11, 12 and 13 of the applicant's statement of claim be struck out." "The applicants pay the respondent's costs."]