BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No.3) [2002] FCA 88

BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No.3) [2002] FCA 88

The application to strike out paragraphs of the Defence was rejected because the alternative pleas, as structured, were not inconsistent within the meaning of the Federal Court Rules and were permissible. Paragraphs of the Cross-claim alleging loss and damage were found inadequate for failure to plead material facts as to causation and the nature of the loss. Rather than striking out those paragraphs, the Court stood over the motion to give the cross-claimants an opportunity to amend or further particularise their pleading.

Jurisdiction
Australia
Judgment Date
12 February 2002
Procedural Posture
Interlocutory Application (motion to Strike Out Parts of Pleadings) / Ruling on Interlocutory Notice of Motion; Pleadings Stage
Outcome
Application to strike out paragraphs of Defence refused. Application to strike out specified paragraphs of Cross-claim stood over to allow amendment or further particulars.
Legal Topics
['pleadings' 'alternatives in Pleadings' 'striking Out Pleadings' 'trade Practices Act' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'breach of Contract' 'particulars of Damage']
['commercial Law' 'trade Practices'] ['pleadings' 'alternatives in Pleadings' 'striking Out Pleadings' 'trade Practices Act' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'breach of Contract' 'particulars of Damage']

Case Brief

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Procedural Posture

Interlocutory Application (motion to Strike Out Parts of Pleadings) / Ruling on Interlocutory Notice of Motion; Pleadings Stage

Legal Issues

  1. 1 ['Whether various paragraphs of the Defence and Cross-claim should be struck out for inconsistency or embarrassment under Federal Court Rules' 'Whether specified paragraphs of the Cross-claim fail to plead sufficient material facts regarding loss and damage']

Ratio Decidendi

The application to strike out paragraphs of the Defence was rejected because the alternative pleas, as structured, were not inconsistent within the meaning of the Federal Court Rules and were permissible. Paragraphs of the Cross-claim alleging loss and damage were found inadequate for failure to plead material facts as to causation and the nature of the loss. Rather than striking out those paragraphs, the Court stood over the motion to give the cross-claimants an opportunity to amend or further particularise their pleading.

Court Disposition

Application to strike out paragraphs of Defence refused. Application to strike out specified paragraphs of Cross-claim stood over to allow amendment or further particulars.

Orders

  • ['Orders sought in paragraphs 1 and 2 of the notice of motion of the applicant/cross-respondent filed on 18 January 2002 are refused.' 'The notice of motion otherwise be adjourned to a date to be fixed, with liberty to any party to apply to have it relisted for further hearing on reasonable notice.']