Newark Pty Ltd v. Civil & Civic Pty Ltd & Anor [1988] FCA 85

Newark Pty Ltd v. Civil & Civic Pty Ltd & Anor [1988] FCA 85

The proceedings were struck out because the Trade Practices Act foundation of the case had no substance; the claim the applicant appeared to wish to bring was an unpleaded breach of contract claim concerning a wrong direction and had nothing to do with federal law; and the proposed causal theory that slightly smaller tile sheets would have made the breach less likely was fanciful and no amendment was sought.

Jurisdiction
Australia
Judgment Date
09 March 1988
Procedural Posture
Principal Application Claiming Relief Under S.52 of the Trade Practices Act 1974 / Applications for Security for Costs and Motion for Judgment or Strike Out
Outcome
Principal application struck out with costs.
Legal Topics
['strike Out' 'security for Costs' 'insolvent Company in Liquidation' 'misleading or Deceptive Conduct' 'pleadings' 'federal Jurisdiction']
['practice and Procedure' 'trade Practices' 'contract'] ['strike Out' 'security for Costs' 'insolvent Company in Liquidation' 'misleading or Deceptive Conduct' 'pleadings' 'federal Jurisdiction']

Case Brief

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Procedural Posture

Principal Application Claiming Relief Under S.52 of the Trade Practices Act 1974 / Applications for Security for Costs and Motion for Judgment or Strike Out

Legal Issues

  1. 1 ["Whether the applicant's present pleading disclosed a substantive claim under s.52 of the Trade Practices Act 1974." 'Whether the proceedings should be struck out because the pleaded federal basis of the claim was groundless and the alternative contract theory was unpleaded and fanciful.' 'Whether security for costs should be ordered against the insolvent applicant company in liquidation.']

Ratio Decidendi

The proceedings were struck out because the Trade Practices Act foundation of the case had no substance; the claim the applicant appeared to wish to bring was an unpleaded breach of contract claim concerning a wrong direction and had nothing to do with federal law; and the proposed causal theory that slightly smaller tile sheets would have made the breach less likely was fanciful and no amendment was sought.

Court Disposition

Principal application struck out with costs.

Orders

  • ['The principal application be struck out.' "The applicant pay the respondents' costs of and incidental to the proceedings, to be taxed."]