Alpen v Richards [2013] FCA 1387

Alpen v Richards [2013] FCA 1387

The application for summary judgment fails because, on the basis of the pleaded facts and taking the applicants’ allegations as capable of being proved at trial, the claims against Ms Boehm are not so manifestly untenable as to warrant summary dismissal: there remains a triable issue whether her conduct was part of Mr Richards' trade or commerce, thereby potentially attracting liability under s 12DA of the ASIC Act.

Jurisdiction
Australia
Judgment Date
03 December 2013
Procedural Posture
Interlocutory Application / Application for Summary Judgment Under S 31 A(2) of the Federal Court of Australia Act 1976
Outcome
Interlocutory application dismissed; costs reserved; defence to be filed by specified date.
Legal Topics
['summary Judgment' 'reasonable Prospects of Success' 'misleading or Deceptive Conduct']
['civil Procedure'] ['summary Judgment' 'reasonable Prospects of Success' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Interlocutory Application / Application for Summary Judgment Under S 31 A(2) of the Federal Court of Australia Act 1976

Legal Issues

  1. 1 ['Whether the applicants have no reasonable prospects of success in prosecuting the proceeding against Ms Boehm as alleged under s 12DA of the ASIC Act' 'Whether summary judgment should be granted under s 31A(2) of the Federal Court of Australia Act 1976']

Ratio Decidendi

The application for summary judgment fails because, on the basis of the pleaded facts and taking the applicants’ allegations as capable of being proved at trial, the claims against Ms Boehm are not so manifestly untenable as to warrant summary dismissal: there remains a triable issue whether her conduct was part of Mr Richards' trade or commerce, thereby potentially attracting liability under s 12DA of the ASIC Act.

Court Disposition

Interlocutory application dismissed; costs reserved; defence to be filed by specified date.

Orders

  • ['The interlocutory application of Ms Boehm filed on 22 August 2013 is dismissed.' 'The costs of and incidental to the application are reserved for later determination.' 'The defence in the proceeding is to be filed by Friday, 20 December 2013.']