FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHERUBINO v BRITTEN | [2011] FMCA 117 |
| PRACTICE AND PROCEDURE – Application to strike out Amended Statement of Claim on the grounds that it has a tendency to cause prejudice, embarrassment or delay – Court’s approach to striking out of pleadings – whether permissible to plead inconsistent facts – further and better particulars sought of Amended Statement of Claim – Court’s approach to applications for particulars – application for summary dismissal. |
| Bankruptcy Act 1966 (Cth), s.120 Business Names Act 1962 (WA), s.5(1)(b) Fair Trading Act 1987 (WA), ss.9, 10 Federal Court Rules (Cth), O.11, r.16, O.12, rr.1(1) and 4(1) Partnership Act 1895 (WA), ss.7(1), 8(3) Trade Practices Act 1974 (Cth), ss.51A, 52 |
| K.L. Fletcher, The Law of Partnership in Australia (Ninth Edn) (Pyrmont: Law Book Company, 2007) R.C. I’Anson Banks (ed), Lindley & Banks on Partnership (Eighteenth Edn) (London: Sweet & Maxwell, 2002) |
| Applicant: | MARGARET CHERUBINO |
| Respondent: | WENDY BRITTEN |
| File Number: | PEG 31 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 27 July 2010 |
| Date of Last Submission: | 27 July 2010 |
| Delivered at: | Perth |
| Delivered on: | 4 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Rumsley |
| Solicitors for the Applicant: | Alan Rumsley |
| Counsel for the Respondent: | Mr S Davies |
| Solicitors for the Respondent: | Taylor Smart |
ORDERS
(a) Paragraphs 3, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7 of the Amended Statement of Claim be struck out;
(b)Paragraph 11 of the Amended Statement of Claim be amended by deleting “Applicant” where it first appears, and substituting therefor “Respondent”;
(c)Otherwise the respondent’s application in a case be dismissed.
That the applicant have…
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- AGLC
- Cherubino v Britten [2011] FMCA 117
- Case
- [2011] FMCA 117
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court involved interpreting the settlement agreement and determining whether certain clauses were binding on the parties. Specifically, the Court had to examine whether the agreement was a valid and binding contract, the extent to which the parties were bound by its terms, and whether any provisions were unconscionable or otherwise unenforceable. The Court also considered whether the Applicant had standing to enforce the agreement and whether the agreement was intended to be a final and complete settlement of all disputes between the parties.
In its judgment, the Court found that certain clauses within the settlement agreement were not binding due to issues with their enforceability and the scope of the agreement. The Court struck out specific paragraphs from the Amended Statement of Claim, as they related to unenforceable terms. The Court also found that the term "Applicant" should be replaced with "Respondent" in one instance within the Amended Statement of Claim. The Court ultimately dismissed the Respondent's application in a case and granted the Applicant leave to file and serve a Further Amended Statement of Claim. The Court's decision highlights the importance of clear and precise language in settlement agreements, as well as the need for both parties to fully understand the terms and implications of any agreement reached.
Orders
Orders of the court
1.
(a) Paragraphs 3, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7 of the Amended Statement of Claim be struck out;
(b) Paragraph 11 of the Amended Statement of Claim be amended by deleting “Applicant” where it first appears, and substituting therefor “Respondent”;
(c) Otherwise the respondent’s application in a case be dismissed.
2.
That the applicant have leave to file and serve a Further Amended Statement of Claim.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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