Mignon Cakes Pty Limited v Hiltide Pty Limited [2004] FCA 1453

Mignon Cakes Pty Limited v Hiltide Pty Limited [2004] FCA 1453

Applications to strike out evidence in advance of trial should only succeed where irrelevance or inadmissibility is clear; in circumstances where the potential relevance may become clearer at trial, the determination should be deferred and the application dismissed, with liberty to raise the objections at trial.

Parties
Applicant: Mignon Cakes Pty Limited; First Respondent / Cross Claimant: Hiltide Pty Limited; Second Respondent: Danjab Pty Limited; Third Respondent: John Lewis Schlederer; Cross Respondent: Mignon Cakes
Jurisdiction
Australia
Judgment Date
08 November 2004
Procedural Posture
Commercial / Interlocutory (application to Strike Out Affidavit Paragraphs)
Outcome
Oral application to strike out parts of affidavit dismissed; related costs reserved; interlocutory steps regarding the impugned paragraphs by leave only; matter stood over for directions and mediation discussion; leave to applicant to reply by affidavit on specific paragraphs.
Legal Topics
Striking Out Affidavit Evidence, Admissibility of Evidence, Damages – Misrepresentation
Commercial Law Striking Out Affidavit Evidence Admissibility of Evidence Damages – Misrepresentation

Case Brief

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Parties

Mignon Cakes Pty Limited

Applicant

Hiltide Pty Limited

First Respondent / Cross Claimant

Danjab Pty Limited

Second Respondent

John Lewis Schlederer

Third Respondent

Mignon Cakes

Cross Respondent

Procedural Posture

Commercial / Interlocutory (application to Strike Out Affidavit Paragraphs)

Legal Issues

  1. 1 Whether subparagraphs (e) and (g) to (p) of Mr Schlederer's affidavit should be struck out or ruled inadmissible at hearing
  2. 2 Relevance and admissibility of post-completion events in establishing or refuting false/misleading representations

Ratio Decidendi

Applications to strike out evidence in advance of trial should only succeed where irrelevance or inadmissibility is clear; in circumstances where the potential relevance may become clearer at trial, the determination should be deferred and the application dismissed, with liberty to raise the objections at trial.

Court Disposition

Oral application to strike out parts of affidavit dismissed; related costs reserved; interlocutory steps regarding the impugned paragraphs by leave only; matter stood over for directions and mediation discussion; leave to applicant to reply by affidavit on specific paragraphs.

Orders

  • The motion brought orally be dismissed.
  • Costs of that motion be reserved.