Colin John Donkin v Australian Guarantee Corporation Ltd

[1991] FCA 873

JUDGMENT NO. ........ ..... ...... ...-.. 833 / S \

JN THE FEDERAL COURT OF AUSTRALIA )	No. QG 93 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN: COLIN JOHN DONKIN AND HEATHER KAYE DONKIN

Applicants

AND: NSTRALIAN GUARANTEE CORPORATION LIMITED

Respondent

MINUTES OF ORDER

&DGE MAKING ORDER:	PINCUS J.
PATE OF ORDER:	24 JULY 1991
WHERE W E :	BRISBANE
THE COURT ORDERS THAT:

1.    The statement of claim be struck out.

2.    The applicants pay the respondent's costs of and incidental to the application to strike out.

3.    The applicants file and serve a new statement of claim, if so advised, by 7 August 1991.

4.    Adjourn the matter for further mention until Monday 12 August 1991 at 9.30 a.m.

NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

JN THE FED ER^ COURT OF AUSTRALIA	1	No. QG 93 of 1991
QUEENSLAND DISTRICT REGISTRY	1	I
GENERAL DIVISION	)

BETWEEN: COLIN JOHN DONKIN AND HEATHER KAYE DONKIN

Applicants

AND: AUSTRALIAN GUARANTEE CORPORATION LIMITED

Respondent

m: PINCUS J.

M:	BRISBANE
24 JULY 1991

EX TEMPORE REASONS FOR JUDGMENT

This is an application to strike out a pleading. The principal application, which was filed on 5 July 1991, seeks a mandatory injunction requiring the return of the motor

vessel "Dennison Star" to the applicants' possession at its
mooring at Roslyn Bay Queensland. It also seeks an injunction
restraining the sale of the vessel, damages for trespass and

for unlawful seizure, damages for conversion for unlawful

seizure, and other relief.

The application has been drawn in such a form as to

make it appear that the essence of the case is that the advance bookings. Paragraph 15 says that at the date of seizure, the vessel was shortly to resume normal services,

respondent unlawfully seized a motor vessel. An examination
of the statement of claim confers that impression, because
paragraph 13 says that one Hapier, a servant or agent of the
respondent, eeized the veesel and took it out to sea.

although then laid up. Paragraph 16, again, seems to be

directed to the proposition that the seizure caused loss.

Paragraph 17 is as follows:

"The seizure of the vessel by the Respondent as amended) and/or in contravention of Section 96 of the Credit Act 1987 (as amended)".

aforesaid was unlawful and in contravention of

Then paragraph 19 complains of damage caused by the seizure. Paragraph 20 says that the seizure was a trespass in matters of the same sort.

One innocent of the applicantsr true intention, as

explained by their counsel, might, as I have implied, had the
impression that the case was all about an unlawful seizure,
and the element of illegality seems to have been a failure to
comply with the statutes mentioned in paragraph 17, the Hire

purchase Act 1959 and the Credit Act 1987.

The basis of the seizure, in fact, appears to have

been the respondent's alleged right as holder of the bill of sale, and it does not appear to be suggested now that either of the statutes mentioned in paragraph 17 can found a cause of

action in the applicants. Counsel for the applicants has
explained to me today that the intention is not to pursue the
allegation in paragraph 17, but to base the case upon the
allegation that the respondent, as mortgagee, had a duty to
preserve, not only the vessel, but also the business, and that
it breached that duty by seizing the vessel, and putting it
into the business.

It is my firm opinion that the statement of claim

does not make that case at all clearly, and that it should be

repleaded. I hesitate to say this, but it seems to me clear

that there should be considerable care and attention given to the new pleading, to make sure that it is legally defensible, to avoid the unfortunate consequence which must ensue today,

which is the pleading must be struck out with costs; that is,
that I would urge those involved on the applicants' side to do
the best they can. It may be necessary - and it is often
helpful to do this - to get an independent view of the
pleading from some person who was perhaps not involved in it
earlier, to make sure that the applicants do not have to meet
a second application of the kind which has succeeded today.

It is always easier to criticize a pleading than to draw it yourself, and I do not seek to minimize the difficulty

of drawing pleadings which will withstand careful scrutiny.

That is why I, myself, when at the junior bar, would sometimes seek the advice on such matters of more senior counsel; I am sure such advice would still be readily given if there was anticipated an attack on a pleading.

However, unfortunate though it may be for the

applicante, it eeems clear that the respondent is entitled to

the relief which it seeks. That is that the statement of

claim is struck out and the applicants must pay the

respondent's costs of the application to strike out.

I will give the applicants 14 days - that is until 7

August - to file and serve a new statement of claim, if so

advised. I will adjourn the matter for further mention until

Monday, 12 August, at 9.30 am.

I certify that this and the three preceding pages are a true copy of the reasons

for judgment herein of his

Honour Mr Justice Pincus . -

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L.-, --/,-P. -.-

Associate