Eggerth v EPI International Pty Ltd

Link copied
Case Copied 50 min read

FEDERAL COURT OF AUSTRALIA

Eggerth v EPI International Pty Ltd [2017] FCA 1547

File number(s): NSD 437 of 2015
Judge(s): DERRINGTON J
Date of judgment: 22 December 2017
Catchwords:

PRACTICE AND PROCEDURE – application to strike out pleading under r 16.21 – pleading of causation under s 52 of Trade Practices Act 1974 (Cth) (s 18 Australian Consumer Law) considered – requirement to plead that specific person was lead into error considered – whether pleading that conduct was “in trade or commerce” was a “bald assertion” or could be supported inferentially considered

PRACTICE AND PROCEDURE – application to strike out pleading under r 16.21 – particularisation of a claim for breach of trust considered

PRACTICE AND PROCEDURE – costs – taxation of costs immediately – circumstances where the Court will depart from the general rule under r 40.13 of the Federal Court Rules 2011 (Cth) considered
Legislation:

Australian Consumer Law, sch 2, ss 18, 236

Federal Court of Australia Act 1976 (Cth), ss 37M, 37N, 43(2)

Trade Practices Act 1974 (Cth), s 82

Federal Court Rules 2011 (Cth), rr 16.02, 16.21, 40.12, 40.13
Cases cited:

Australian Competition and Consumer Commission v Pauls Ltd (2000) ATPR 41-747

Barclay Mowlem Construction Limited v Dampier Port Authority [2006] 33 WAR 82

Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215

Bright v Femcare (2000) 175 ALR 50

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592

Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45

Charlie Carter Pty Ltd v SDAEA (WA) (1987) 13 FCR 413

Cleary v Australian Cooperative Foods (No 2) (1999) 32 ACSR 701

Concrete Construction (NSW) Pty Ltd v Nelson (1990) 169 CLR 594

Eggerth v Piccardi [2017] FCA 939

General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125

Hampic Pty Ltd v Adams (1999) ASAL 55-035

Higginbotham v Kerr [2017] FCA 686

Janssen-Cilag Pty Ltd v Pfitzer Pty Ltd (1992) 37 FCR 526

John Holland Pty Ltd v Maritime Union [2009] FCA 437

Miller v Cameron (1936) 54 CLR 572

NRMA v Yates (2000) 18 ACLC 45

Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325

QS Holdings Sarl v Pauls Retail Pty Ltd (No 2) [2011] FCA 1038

Radisch v McDonald (2010) 198 IR 244

Rana v Google Inc (No 2) (2017) 347 ALR 663

Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457

Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15

Thunderdome Race Timing and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297

Toben v Jones (2012) 298 ALR 203

Viscariello v Macks (2014) 103 ACSR 542

Yates v Whitlam (1999) 32 ACSR 595
Date of hearing: 14 December 2017
Registry: Queensland
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Category: Catchwords
Number of paragraphs: 75
Counsel for the Applicant: Mr A Stumer
Solicitor for the Applicant: Trisley Lawyers
Counsel…
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Eggerth v EPI International Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2017] FCA 1547
Decision Date

CaseChat Overview and Summary

The case of Eggerth v EPI International Pty Ltd involved an application by the respondents to strike out parts of the applicant’s pleadings, arguing that they were insufficiently particularised. The case also dealt with the issue of taxation of costs immediately, specifically in circumstances where costs had been ordered to be paid by the applicant to the respondents. The Federal Court was tasked with deciding whether the pleadings were adequate and whether the respondents were entitled to have the costs ordered to be taxed forthwith.

The court considered whether the applicant’s pleadings were sufficiently detailed to withstand a motion to strike out. The court found that the pleadings were adequate, particularly in light of the fact that the applicant had been granted leave to amend them. The court also considered whether the respondents were entitled to have the costs ordered to be taxed immediately. The court found that while the order for costs should not be altered, there was no difficulty in a court making an order that a previous order for costs be taxed forthwith. However, the court noted that such an application should usually be made within a relatively short period of time after the making of the order.

The court dismissed the application to strike out the pleadings and to tax the costs immediately. The court held that the pleadings were adequately particularised and that the respondents were not entitled to have the costs ordered to be taxed forthwith. The court also ordered that the applicant pay the respondents’ costs thrown away by reason of the making of the amendments to the Originating Application and Statement of Claim, as well as the costs of the application to amend.

In conclusion, the court found that the pleadings were adequately particularised and that the respondents were not entitled to have the costs ordered to be taxed forthwith. The court dismissed the application to strike out the pleadings and to tax the costs immediately. The court also made orders in relation to the costs, including that the applicant pay the respondents’ costs thrown away by reason of the making of the amendments to the Originating Application and Statement of Claim, as well as the costs of the application to amend.

Orders

Orders of the court

1. The application filed 17 December 2017 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

This attack on the pleading must also fail.Conclusion on application to strike out In the result, none of the attacks on the pleading can be sustained and to the extent to which the application seeks to strike out paragraphs of the pleading, the application should be dismissed.Taxation of costs forthwith On 18 August 2017 the Court ordered that the applicant have leave to amend his Originating Application and Statement of Claim. Orders were made in relation to costs in the following form:5.The applicant pay the respondents’ costs thrown away by reason of the making of the amendments referred to in orders 1 and 2 hereof. 6.The costs of the application to amend be each party’s costs in the proceedings. The respondents sought an order that the costs ordered to be paid under orders 5 or 6 be immediately taxed. Presumably they wish those amounts to be paid upon the completion of the taxation. The orders sought in relation to paragraph 6 appear to be misconceived. The respondents will only be entitled to recover those costs if they succeed in the action. There is simply no point in having those costs taxed now as they may never be payable by the applicant to the respondents. It seems that for this reason the respondents filed an amended interlocutory application at the hearing in which it amended the relief sought. The respondents now seek orders that they be entitled to tax immediately:(a)The order made on 1 June 2017 that the applicant pay their costs thrown away by the adjournment of the trial; and(b)The order made on 18 August 2017 that the applicant pay their costs thrown away by reason of the making of the amendments to the Claim and Statement of Claim. At the time of making the order on 1 June 2017, Mr Cooper QC for the respondents, reserved his position as to whether additional orders would be sought in relation to costs. No such reservation was made in relation to the orders made on 18 August 2017, and Mr Stumer for the applicants submitted that the respondents should not be allowed to re-open issues about those costs orders. That submission should not be accepted. Whilst the cost order itself should not be altered, there seems to be no difficulty in a court making an order that a previous order for costs be taxed forthwith. That said, an application for an order that a costs order be taxed prior to the completion of the matter ought, usually, be made within a relatively short period of time after its making.Scope of the costs The application to amend the Claim and Statement of Claim occurred in the period leading up to the dates on which the trial of this action was originally set. The trial had to be adjourned as a result of the making of the amendments. The amendments made by the applicant are identified in the earlier judgment of the Court in relation to this matter. In brief, the applicant abandoned the claim based upon being misled into the trust arrangement which had stood between him and the Piccardi’s for some 20 plus years. He recalibrated his claim by seeking to enforce his entitlements under the trust as it was established. There is no doubt that some of the costs which were incurred in the conduct of a matter prior to the amendment will have been wasted. However, the true nature and extent of that wastage will not be apparent until, at the earliest, this matter is ready for trial. Indeed it will best be able to be ascertained after the hearing of the trial. This is perhaps emphasised by the applicant continuing to rely on the witness statements which were filed in relation to the action as formerly pleaded. The general rule

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.