In the matter of Moage Ltd (in liq) Moage Ltd (in liq) v Jagelman, Joseph Grant & Ors [1998] FCA 296

In the matter of Moage Ltd (in liq) Moage Ltd (in liq) v Jagelman, Joseph Grant & Ors [1998] FCA 296

The paragraphs pleaded against Mallesons were so vague and unspecific regarding alleged knowledge, state of mind, and the basis for breach of fiduciary duty that they fail to disclose a claim with sufficient clarity. The use of 'and/or' creates uncertainty and imprecision inappropriate for a statement of claim,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
01 April 1998
Procedural Posture
Strike Out Application (practice and Procedure) / Interlocutory (motion to Strike Out Parts of the Statement of Claim)
Outcome
Strike out application allowed in part.
Legal Topics
['fiduciary Duty of Solicitors' 'conflict of Interest' 'pleading Requirements' 'limitation Periods' 'negligence' 'breach of Contract']
['equity' 'legal Profession' 'practice and Procedure' 'corporations'] ['fiduciary Duty of Solicitors' 'conflict of Interest' 'pleading Requirements' 'limitation Periods' 'negligence' 'breach of Contract']

Source-derived case record

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Procedural Posture

Strike Out Application (practice and Procedure) / Interlocutory (motion to Strike Out Parts of the Statement of Claim)

Legal Issues

  1. 1 ['Whether the pleading adequately alleges breach of fiduciary duty by Mallesons Stephen Jaques and its partners' "Whether the use of 'and/or' and imprecise allegations as to state of mind and knowledge render the pleading deficient" 'Whether knowledge held by solicitors within a large law firm can be attributed for fiduciary breaches' 'Application of limitation statutes to the claims in contract, tort, and equity']

Ratio Decidendi

The paragraphs pleaded against Mallesons were so vague and unspecific regarding alleged knowledge, state of mind, and the basis for breach of fiduciary duty that they fail to disclose a claim with sufficient clarity. The use of 'and/or' creates uncertainty and imprecision inappropriate for a statement of claim, especially given the specific requirements for attributing knowledge and intention in allegations of fiduciary breach by a solicitor. Thus, the relevant paragraphs should be struck out and liberty to replead granted.

Court Disposition

Strike out application allowed in part.

Orders

  • ['Paragraphs 208 to 220 inclusive of the Further Amended Statement of Claim are struck out.' "The applicant has leave to replead within 28 days, but must pay the sixth respondents' costs thrown away by the repleading in any event." "The costs of the motion filed 24 June 1997 are the sixth respondents' costs in the...