Alpine Holdings Pty Ltd v FEINAUER

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ALPINE HOLDINGS PTY LTD & ORS -v- FEINAUER [2006] WASC 80



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2006] WASC 80
Case No:CIV:1001/20057 APRIL 2006
Coram:MASTER SANDERSON10/05/06
10Judgment Part:1 of 1
Result: Paragraph of statement of claim struck out
Leave to replead granted
B
PDF Version
Parties:ALPINE HOLDINGS PTY LTD (ACN 009 471 907)
EGON KONIG
SHELLEY KONIG
DIRK FEINAUER

Catchwords:

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

Legislation:

Rules of the Supreme Court 1971 (WA), O 59 r 9
Trade Practices Act 1974 (Cth)

Case References:

Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd [2003] WASC 53
Buyquick.com Ltd v Foxgold Pty Ltd [2000] WASC 216
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
Giannarelli v Wraith (1988) 165 CLR 543
Keefe v Marks (1989) 16 NSWLR 713
May v Mijatovic [2002] WASC 151
Rees v Sinclair [1974] 1 NZLR 180
Walton v Gardiner (1992) 177 CLR 378

Cleary v Jeans [2006] NSWCA 9
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
Rogers v The Queen (1994) 181 CLR 251
VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716
West & Ors v Jackson McDonald (a firm) [2001] WASC 198

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CHAMBERS
CITATION : ALPINE HOLDINGS PTY LTD & ORS -v- FEINAUER [2006] WASC 80 CORAM : MASTER SANDERSON HEARD : 7 APRIL 2006 DELIVERED : 10 MAY 2006 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 paragraph of statement of claim - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 59 r 9


Trade Practices Act 1974 (Cth)

(Page 2)



Result:

Paragraph of statement of claim struck out


Leave to replead granted

Category: B


Representation:

Counsel:


    First Plaintiff : Mr A Metaxas
    Second Plaintiff : Mr A Metaxas
    Third Plaintiff : Mr A Metaxas
    Defendant : Mr C G Colvin 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 v Warwick Entertainment Centre Pty Ltd [2003] WASC 53
Buyquick.com Ltd v Foxgold Pty Ltd [2000] WASC 216
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
Giannarelli v Wraith (1988) 165 CLR 543
Keefe v Marks (1989) 16 NSWLR 713
May v Mijatovic [2002] WASC 151
Rees v Sinclair [1974] 1 NZLR 180
Walton v Gardiner (1992) 177 CLR 378

Case(s) also cited:



Cleary v Jeans [2006] NSWCA 9
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
Rogers v The Queen (1994) 181 CLR 251
VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716
West &…
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Details
Case
[2006] WASC 80
Decision Date

CaseChat Overview and Summary

Alpine Holdings Pty Ltd and others initiated proceedings against Dirk Feinauer, alleging negligence in his representation of them in a prior action against Warwick Entertainment Centre Pty Ltd. The current dispute revolves around the validity of specific paragraphs in the statement of claim, which the defendant seeks to have struck out. The central issues before the court were whether certain paragraphs of the statement of claim could be struck out on the basis of advocate's immunity and whether the defendant's application to strike out should be dismissed due to procedural irregularities. The court found that certain paragraphs, specifically those concerning the sale of the plaintiffs' businesses and the advice given regarding the settlement offer, should be struck out due to the principle of advocate's immunity and factual findings from a previous judgment. The court also ruled that the defendant's application should proceed as the leave to file the application had already been granted by the Registrar. The plaintiffs were granted leave to replead, provided the new pleadings adhered to the court's reasoning. The court reserved the decision on costs, to be heard further from counsel in light of the reasons provided.

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