Elsehaly, S. & Anor v Mitchell, D.R. & Ors [1987] FCA 670

Elsehaly, S. & Anor v Mitchell, D.R. & Ors [1987] FCA 670

The amended statement of claim filed on 3 November 1987 is not in a form suitable to enable the case to be conveniently tried or to allow the second respondent to know precisely the case against him. For this reason, the pleading should be struck out, and the applicants permitted to amend.

Parties
Applicant: Shaab Elsehaly; Applicant: Hassanat Elsehaly; First Respondent: Desmond Roy Mitchell; Second Respondent: Wayne Michael McCrae; Third Respondent: Kenneth Noel Penfold; Fourth Respondent: Oak Brand Pty. Ltd.; Fifth Respondent: Taylor Holdings Pty. Ltd.
Jurisdiction
Australia
Judgment Date
06 November 1987
Procedural Posture
Civil / Interlocutory Application Concerning Pleadings and Directions
Outcome
amended statement of claim struck out; leave to replead; costs orders made

Case Brief

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Parties

Shaab Elsehaly

Applicant

Hassanat Elsehaly

Applicant

Desmond Roy Mitchell

First Respondent

Wayne Michael McCrae

Second Respondent

Kenneth Noel Penfold

Third Respondent

Oak Brand Pty. Ltd.

Fourth Respondent

Taylor Holdings Pty. Ltd.

Fifth Respondent

Procedural Posture

Civil / Interlocutory Application Concerning Pleadings and Directions

Legal Issues

  1. 1 adequacy and form of amended statement of claim
  2. 2 precision in pleading fraud
  3. 3 whether portions of the application should be struck out for lack of clarity

Ratio Decidendi

The amended statement of claim filed on 3 November 1987 is not in a form suitable to enable the case to be conveniently tried or to allow the second respondent to know precisely the case against him. For this reason, the pleading should be struck out, and the applicants permitted to amend.

Court Disposition

amended statement of claim struck out; leave to replead; costs orders made

Orders

  • the amended statement of claim, filed on 3 November 1987, be struck out;
  • the applicants have leave to deliver a further amended statement of claim on or before 23 November 1987, without prejudice to the respondents' right to apply further in relation thereto;