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

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 80
Case No:	CIV:1001/2005	Heard:	7 APRIL 2006
Coram:	MASTER SANDERSON	Delivered:	10/05/06
No of pages:	10	Judgment Part:	1 of 1
Result:	Paragraph of statement of claim struck out Leave to replead granted
Category:	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 &…

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.

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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.

Orders