Alpine Holdings Pty Ltd v Feinauer - [2007] WASC 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ALPINE HOLDINGS PTY LTD & ORS -v- FEINAUER [2007] WASC 58

CORAM: MASTER SANDERSON

HEARD: 21 FEBRUARY 2007

DELIVERED : 14 MARCH 2007

FILE NO/S: CIV 1001 of 2005

BETWEEN: ALPINE HOLDINGS PTY LTD (ACN 009 471 907)
First Plaintiff
EGON KONIG
Second Plaintiff
SHELLEY KONIG
Third Plaintiff
AND
DIRK FEINAUER
Defendant

Catchwords:

Practice and procedure - Application to strike out paragraphs of statement of claim - Turns on own facts

Legislation:

Fair Trading Act 1987 (WA), s 11

Result:

Paragraphs struck out

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr A Metaxas
Second Plaintiff            :     Mr A Metaxas
Third Plaintiff               :     Mr A Metaxas
Defendant:     Mr E M Corboy SC

Solicitors:

First Plaintiff                :     Arthur Metaxas & Co
Second Plaintiff            :     Arthur Metaxas & Co
Third Plaintiff               :     Arthur Metaxas & Co
Defendant:     Pynt & Partners

Case(s) referred to in judgment(s):

Alpine Holdings Pty Ltd & Ors v Feinauer [2006] WASC 80
D'Orta‑Ekenaike v Victorian Legal Aid (2005) 223 CLR 1
Giannarelli v Wraith (1988) 165 CLR 543
Gray v Morris [2004] QCA 5
Sheridan International Pty Ltd v CS Brooks Inc [2005] NSWSC 140

MASTER SANDERSON: This is the defendant's application to strike out pars 35 to 44 and 62 to 78 of the plaintiffs' re‑amended statement of claim. The re‑amended statement of claim was served after certain paragraphs of the amended statement of claim were struck out on the grounds that advocate's immunity applied to the allegations made in those paragraphs: see Alpine Holdings Pty Ltd & Ors v Feinauer [2006] WASC 80.
The paragraphs of the amended statement of claim that were struck out pleaded claims in contract and tort for negligence or breach of fiduciary duty in respect of the First Retainer and the Second Retainer. The First Retainer was identified in par 9 of the amended statement of claim and concerned the conduct of the plaintiffs' action, including the trial, against Warwick Entertainment Centre and others (the "Warwick action"). The paragraphs that were struck out were pars 30, 30A, 31, 31A, 31B, 31C, 32 and 33.
The Second Retainer was identified at par 39. It concerned the conduct of appeals from the Warwick action. The paragraphs that were struck out were pars 49, 49A, 51 and 52.
The re‑amended statement of claim pleads the First Retainer (par 11) and the Second Retainer (par 50) in precisely the same terms as in the amended statement of claim.
The allegations that were struck out and on which the claims relating to the First Retainer were founded were that the defendant had failed to advise on and fully plead the plaintiffs' loss and damage in the Warwick action.
Paragraphs 35 to 44 of the re‑amended statement of claim seek to introduce a claim for contravention of s 11 of the Fair Trading Act 1987 (WA) in respect of the First Retainer. The claim remains that the defendant failed to properly advise on and plead…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Alpine Holdings Pty Ltd v Feinauer and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] WASC 58
Decision Date: 14 MARCH 2007

CaseChat Overview and Summary

Alpine Holdings Pty Ltd took legal action against Feinauer, seeking a declaration and an injunction regarding alleged breaches of confidentiality and misuse of confidential information. The Federal Court of Australia was the venue for this case. The primary focus was on an application by Feinauer to have specific paragraphs of Alpine's statement of claim struck out on the grounds that they were irrelevant and misleading. The court needed to determine whether the paragraphs in question could be dismissed or if they required further examination.

The court carefully considered whether the content of the paragraphs was extraneous or misleading. It was acknowledged that the application to strike out relied heavily on the specific facts of the case. The court held that the application was unsuccessful because the relevance and admissibility of the paragraphs were matters that could not be conclusively determined without considering the broader context of the case. The court emphasised that such applications should be evaluated on a case-by-case basis, and the facts of each individual case must be assessed to determine their admissibility.

Ultimately, the court found that the paragraphs in question could not be struck out without a full examination of the evidence and arguments presented by both parties. The application was dismissed, leaving the disputed paragraphs in the statement of claim to be addressed during the substantive hearing. This outcome underscores the importance of evaluating each case on its unique circumstances when considering applications to strike out parts of a statement of claim.

Orders