Bli Bli # 1 P/L v Kimlin Investments P/L

The plaintiffs in this case, Bli Bli # 1 P/L, appealed against interlocutory orders of the primary judge in the Supreme Court of Queensland, who had struck out certain paragraphs from their fourth amended statement of claim. The defendants, Kimlin Investments P/L, had previously been found to have breached fiduciary duties. The primary judge had struck out the paragraphs on the basis that the pleading did not establish a viable claim for the alleged fiduciary duties. The plaintiffs contended that the claim was not so obviously untenable as to warrant rejection at the interlocutory stage and that the primary judge had applied an incorrect principle and erred in striking out the paragraphs. Additionally, the primary judge had struck out a paragraph of the plaintiffs' fourth amended statement of claim relating to relief sought due to lack of compliance with rule 155 of the Uniform Civil Procedure Rules 1999 (Qld). The plaintiffs argued that this paragraph should not be struck out as it contained relevant information predominantly in the defendants' knowledge. Furthermore, the primary judge had ordered the plaintiffs to provide further particulars of other allegations in their fourth amended statement of claim. The plaintiffs contended that the primary judge had erred by treating the defendants' admissions as applicable only to an earlier statement of claim and that the particulars were sufficient to define the issues so as to enable the defendants to have a fair opportunity to meet the plaintiffs' case.

The court found that the primary judge had erred in striking out the paragraphs relating to the fiduciary duties. The court held that the plaintiffs had made out a viable claim for the alleged fiduciary duties, and the claim was not so obviously untenable as to warrant rejection at the interlocutory stage. The court further found that the primary judge had not applied an incorrect principle and had not erred in striking out the paragraph relating to relief sought. The court held that the paragraph did not comply with rule 155 of the Uniform Civil Procedure Rules 1999 (Qld) and was properly struck out. Regarding the further particulars, the court found that the primary judge had erred by treating the defendants' admissions as applicable only to an earlier statement of claim. The court held that the particulars were sufficient to define the issues so as to enable the defendants to have a fair opportunity to meet the plaintiffs' case and that the plaintiffs should not be required to provide further particulars in order to define the issues for trial.

The court allowed the appeal and set aside the orders made in the Trial Division on 4 December 2009. The plaintiffs were required to give the best particulars they could give of the allegation in paragraph 11(f) of the fourth amended statement of claim on or before 18 June 2010. The defendants were ordered to pay the plaintiffs' costs of and incidental to the amended application filed on 17 August 2009, on the standard basis. The respondents were ordered to pay the appellants' costs of and incidental to this appeal, on the standard basis.