Nardy Pty Ltd v Birchwood Hall Pty Ltd & Ors [1998] FCA 538

Nardy Pty Ltd v Birchwood Hall Pty Ltd & Ors [1998] FCA 538

Although the amended statement of claim was not tightly drawn and raised questions about the merits of the action, it pleaded the case clearly enough in substance. The respondents' pleading objections were without substance or could be dealt with by particulars, and the claims were not so manifestly untenable or defective as to justify striking out the statement of claim.

Jurisdiction
Australia
Judgment Date
18 May 1998
Procedural Posture
Application Alleging Misleading or Deceptive Conduct and Negligence Arising From Purchase of a Business / First and Second Respondents' Motion to Strike Out Amended Statement of Claim
Outcome
The first and second respondents' strike out motion was dismissed with costs.
Legal Topics
['pleadings' 'strike Out Motion' 'misleading or Deceptive Conduct' 'accessorial Liability' 'duty of Care' 'damages Under S 82']
['practice and Procedure' 'trade Practices' 'fair Trading' 'negligence'] ['pleadings' 'strike Out Motion' 'misleading or Deceptive Conduct' 'accessorial Liability' 'duty of Care' 'damages Under S 82']

Case Brief

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Procedural Posture

Application Alleging Misleading or Deceptive Conduct and Negligence Arising From Purchase of a Business / First and Second Respondents' Motion to Strike Out Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the amended statement of claim was so defective that it ought to be struck out.' "Whether pleaded facts concerning the McMurrays' directorships and day to day control were irrelevant or unintelligible." 'Whether the pleading adequately alleged agency, representations, accessorial liability, loss and damage, and proximity for a duty of care.' 'Whether a purpose for delivery of profit and loss statements was necessary for causes of action under ss 52 and 82 of the Trade Practices Act and corresponding Fair Trading Act provisions.']

Ratio Decidendi

Although the amended statement of claim was not tightly drawn and raised questions about the merits of the action, it pleaded the case clearly enough in substance. The respondents' pleading objections were without substance or could be dealt with by particulars, and the claims were not so manifestly untenable or defective as to justify striking out the statement of claim.

Court Disposition

The first and second respondents' strike out motion was dismissed with costs.

Orders

  • ["The first and second respondents' motion filed 16 February 1998 is dismissed." "The first and second respondents are to pay the applicant's costs of the motion."]