BOASE -v- AXIS INTERNATIONAL MANAGEMENT PTY LTD [2009] WASC 331

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 331
Case No:	CIV:1709/2008	Heard:	ON THE PAPERS
Coram:	BEECH J	Delivered:	12/11/09
No of pages:	10	Judgment Part:	1 of 1
Result:	Paragraph 12 of the statement of claim struck out with leave to replead
Category:	B
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Parties:	T BOASE & J L BOASE ATF THE BOASE SUPER FUND T BOASE & J L BOASE ATF THE BOASE FAMILY TRUST AXIS INTERNATIONAL MANAGEMENT PTY LTD (ACN 075 799 772) SAGECORP SECURITIES PTY LTD (ACN 096 562 266) QUENTIN PHILLIP O'DOHERTY WARD ANGELO DEL BORELLO GAVIN HAWKINS DAVID MORTIMER MORGAN ALTERUTHEMEYER COMMERCIAL LAWYERS & MIGRATION AGENTS
Catchwords:	Practice and procedure Pleadings Application to strike out part of statement of claim Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA) O 20 r 19
Case References:	Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 Breen v Williams [1996] HCA 57; (1996) 186 CLR 71 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 Joyce v Palassis [2008] WASCA 151 Joyce v Palassis [No 5] [2009] WASC 6 Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) MacMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271 Pilmer v Duke Group Ltd (in liq) [2001] HCA 31; (2001) 207 CLR 165 The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BOASE -v- AXIS INTERNATIONAL MANAGEMENT PTY LTD [2009] WASC 331 CORAM : BEECH J HEARD : ON THE PAPERS DELIVERED : 12 NOVEMBER 2009 FILE NO/S : CIV 1709 of 2008 BETWEEN : T BOASE & J L BOASE ATF THE BOASE SUPER FUND

First Plaintiffs

T BOASE & J L BOASE ATF THE BOASE FAMILY TRUST

Second Plaintiffs

AND

AXIS INTERNATIONAL MANAGEMENT PTY LTD (ACN 075 799 772)

First Defendant

SAGECORP SECURITIES PTY LTD (ACN 096 562 266)

Second Defendant

QUENTIN PHILLIP O'DOHERTY WARD

Third Defendant

ANGELO DEL BORELLO

Fourth Defendant

GAVIN HAWKINS

Fifth Defendant

(Page 2)

DAVID MORTIMER

Sixth Defendant

MORGAN ALTERUTHEMEYER COMMERCIAL LAWYERS & MIGRATION AGENTS

Seventh Defendant

Catchwords:

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

Legislation:

Rules of the Supreme Court 1971 (WA) O 20 r 19

Result:

Paragraph 12 of the statement of claim struck out with leave to replead

Category: B

(Page 3)

Representation:

Counsel:

First Plaintiffs : No appearance

Second Plaintiffs : No appearance

First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : No appearance

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Sixth Defendant : No appearance

Seventh Defendant : No appearance

Solicitors:

First Plaintiffs : In person

Second Plaintiffs : In person

First Defendant : Clavey Legal

Second…

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: [2009] WASC 331
Decision Date: 12 NOVEMBER 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Boase, the plaintiff, brought a claim against Axis International Management Pty Ltd, the defendant, seeking damages for alleged breaches of fiduciary duty, negligence, and breach of contract. The defendant filed an application to strike out paragraph 12 of the plaintiff's statement of claim, arguing that it was vague, uncertain, and did not disclose a cause of action. The court was required to determine whether paragraph 12 of the statement of claim disclosed a reasonable cause of action, despite its perceived vagueness, and whether the plaintiff should be granted leave to amend the pleading if it was found deficient.

The court examined the relevant legal principles and held that the function of pleadings is to provide fair notice of the case to be met. While the court acknowledged the importance of allowing parties to amend their pleadings, it also emphasised the need for pleadings to meet certain standards of certainty and clarity. The court found that paragraph 12 did not sufficiently disclose the basis of the claim, and that it was vague and uncertain. However, the court was satisfied that the plaintiff could replead the claim with sufficient particulars, and granted leave for the plaintiff to amend the statement of claim within a specified timeframe. The court struck out paragraph 12, but allowed the plaintiff to replead.

The court ordered that paragraph 12 of the statement of claim be struck out, but granted the plaintiff leave to amend the pleading within 28 days of the judgment. The court further ordered that if the plaintiff failed to file an amended statement of claim within the specified timeframe, the defendant's application to strike out the entire statement of claim would be allowed.

Orders

Orders of the court

Paragraph 12 of the statement of claim struck out with leave to replead

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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