Aylward, K.J. & Anor v Westpac Banking Corp. [1988] FCA 201

Aylward, K.J. & Anor v Westpac Banking Corp. [1988] FCA 201

The pleadings and particulars regarding the fitness for purpose allegation under s.74(2) Trade Practices Act should be amended to clarify that the applicants' case is based on the inherent uncertainty of benefit from the relevant management services, not deficiencies in service quality. Parts of the statement of claim alleging wagering contracts are struck out as the contracts were not void under the Gaming and Betting Act 1912 (NSW), since the essential feature of mutual risk was absent.

Parties
First Applicant: Kenneth James Aylward; Second Applicant: Star Holdings (QLD) Pty Ltd; Respondent: Westpac Banking Corporation
Jurisdiction
Australia
Judgment Date
29 April 1988
Procedural Posture
Civil / Interlocutory; Order on Pleadings
Outcome
Interlocutory orders made; paras 16 and 17 struck out; amendments and procedural timetable set; costs order for motion made.
Legal Topics
Pleadings, Fitness for Purpose, Misrepresentation, Trade Practices
Contract Law Consumer Protection Pleadings Fitness for Purpose Misrepresentation Trade Practices

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Parties

Kenneth James Aylward

First Applicant

Star Holdings (QLD) Pty Ltd

Second Applicant

Westpac Banking Corporation

Respondent

Procedural Posture

Civil / Interlocutory; Order on Pleadings

Legal Issues

  1. 1 Whether the particulars and pleadings sufficiently identify the purpose/result for the Trade Practices Act s.74(2) claim
  2. 2 Whether contracts under the management agreement constitute wagering contracts under the Gaming and Betting Act 1912 (NSW)

Ratio Decidendi

The pleadings and particulars regarding the fitness for purpose allegation under s.74(2) Trade Practices Act should be amended to clarify that the applicants' case is based on the inherent uncertainty of benefit from the relevant management services, not deficiencies in service quality. Parts of the statement of claim alleging wagering contracts are struck out as the contracts were not void under the Gaming and Betting Act 1912 (NSW), since the essential feature of mutual risk was absent.

Court Disposition

Interlocutory orders made; paras 16 and 17 struck out; amendments and procedural timetable set; costs order for motion made.

Orders

  • Further and better particulars be amended by adding paragraph 4 clarifying applicants' case.
  • Paragraphs 16 and 17 of the amended statement of claim struck out.