Coffey & Partners Pty Ltd v National Mutual Life Association of Australia Limited

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Coffey & Partners Pty Ltd, was the first defendant in the proceedings, and the respondent was National Mutual Life Association of Australia Limited, the plaintiff. The dispute concerned the plaintiff's claim in tort for pure economic loss arising from the purchase of a building with knowledge of defective foundations, which allegedly caused damage.

The primary legal issue before the High Court was whether the plaintiff's statement of claim should be struck out. This involved determining whether there was a real question of law or fact that required determination, which would ordinarily lead to the failure of an application to strike out. The applicant argued that the claim, as framed, was unlikely to succeed based on English authorities such as *D & F Estates* and *Murphy v Brentwood*, which dealt with claims for pure economic loss in similar circumstances.

The Court considered the principles governing applications to strike out a statement of claim, particularly in light of the potential for unresolved questions of law. The applicant sought to rely on pronouncements from cases like *Dey's* and *General Steel Industries*, suggesting that even where extensive argument is required to demonstrate the futility of a claim, an application to strike out might still proceed. However, the Chief Justice noted that the established principle is that once a real question of fact or law emerges, an application to strike out must fail. The Court was therefore presented with the tension between the applicant's submission that the claim was legally untenable and the general rule that striking out is inappropriate when a genuine legal issue is in dispute.