Lashansky v Bruvecchis Pty Ltd (ACN 054 177 427) [2004] FCA 837

Lashansky v Bruvecchis Pty Ltd (ACN 054 177 427) [2004] FCA 837

The statement of claim disclosed no tenable misleading or deceptive conduct claim because the alleged promise of financial assistance did not specify any level of assistance, no false implied representation of capacity or intention was properly pleaded, the pleading itself suggested financial capacity, no causal connection was pleaded between the alleged promise and the applicant's claimed loss, and the settlement of BPL's claims did not provide an intelligible basis for misleading or deceptive conduct. Having regard to the pleading and the applicant's oral submissions, there was no reasonable prospect of repleading a viable cause of action.

Jurisdiction
Australia
Judgment Date
29 June 2004
Procedural Posture
Application Claiming Damages and Other Relief for Misleading or Deceptive Conduct / Respondents' Motion to Strike Out Statement of Claim and Dismiss the Action Under O 20 R 2
Outcome
Statement of claim struck out; application dismissed with costs.
Legal Topics
['misleading or Deceptive Conduct' 'strike Out of Statement of Claim' 'no Reasonable Cause of Action' 'broken Promise' 'causation of Loss and Damage']
['practice and Procedure' 'trade Practices'] ['misleading or Deceptive Conduct' 'strike Out of Statement of Claim' 'no Reasonable Cause of Action' 'broken Promise' 'causation of Loss and Damage']

Case Brief

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Procedural Posture

Application Claiming Damages and Other Relief for Misleading or Deceptive Conduct / Respondents' Motion to Strike Out Statement of Claim and Dismiss the Action Under O 20 R 2

Legal Issues

  1. 1 ['Whether the statement of claim disclosed a reasonable cause of action for misleading or deceptive conduct based on an alleged promise to provide financial assistance to tenants in litigation against a landlord and managing agents.' 'Whether the alleged settlement of the Colonnade litigation by BPL or Mr Bruni could constitute misleading or deceptive conduct under the Trade Practices Act 1974 (Cth).' 'Whether the applicant should be permitted to replead or whether the application should be dismissed.']

Ratio Decidendi

The statement of claim disclosed no tenable misleading or deceptive conduct claim because the alleged promise of financial assistance did not specify any level of assistance, no false implied representation of capacity or intention was properly pleaded, the pleading itself suggested financial capacity, no causal connection was pleaded between the alleged promise and the applicant's claimed loss, and the settlement of BPL's claims did not provide an intelligible basis for misleading or deceptive conduct. Having regard to the pleading and the applicant's oral submissions, there was no reasonable prospect of repleading a viable cause of action.

Court Disposition

Statement of claim struck out; application dismissed with costs.

Orders

  • ['The statement of claim be struck out.' 'The application be dismissed.' "The applicant pay the respondents' costs of the application."]