Fernandez v Glev Pty Ltd

[2000] FCA 1859

FEDERAL COURT OF AUSTRALIA

Fernandez v Glev Pty Ltd [2000] FCA 1859

PRACTICE AND PROCEDURE – motion to strike out Statement of Claim – whether contract claim was within the accrued jurisdiction of the Federal Court – inappropriateness of determining correctness of assertion of fiduciary relationship on strike out application – where pleading alleges that various representations were inaccurate without stipulating why or in what way the inaccuracy arises – where insufficient particulars supplied – where pleading did not make any connection between representations and loss or damaged alleged to have been sustained - where representation as to a future matter not pleaded as such – where pleading was confusing and lacked specificity and clarity – whether Statement of Claim may be struck out where applicant has failed to show that the cause of action arose within the limitation period – where allegation of accessorial liability unsubstantiated by particulars – where particulars supporting allegation of unconscionable conduct identified the conduct as having occurred prior to the commencement of s51AC Trade Practices Act 1974 (Cth)

Federal Court Rules O 11 r 16
Trade Practices Act 1974 (Cth) ss 52, 51AC, 75B, 82(3)

Saunders v Glev Franchises Pty Ltd (1995) 33 IPR 349 distinguished
Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR ¶40-853 referred to
Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 cited
Ronex Properties Ltd v John Laing Constructions Ltd [1983] 1 QB 398 cited

HECTOR FERNANDEZ & ANOR v GLEV PTY LTD & ORS

N 1108 OF 2000

HELY J
20 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1108 OF 2000

BETWEEN:

HECTOR FERNANDEZ
FIRST APPLICANT

HECROZ PTY LTD
SECOND APPLICANT

AND:

GLEV PTY LTD
FIRST RESPONDENT

EVANGELOS CHRISTOU
SECOND RESPONDENT

VASSOS CHRISTOU
THIRD RESPONDENT

GABRIEL CHRISTOU
FOURTH RESPONDENT

LOUIS CHRISTOU
FIFTH RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

20 DECEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the applicants to amend the proceedings by substituting Glev Franchises Pty Ltd as first respondent.

2.Paragraphs 18-24, 25, 26 and 27 of the Statement of Claim be struck out, with leave to replead.

3.The applicants be granted leave to file an Amended Statement of Claim by 5 February 2001.

4.If the respondents wish to contend that the Amended Statement of Claim, or any particular paragraphs in it, should be struck out, then an outline of its submissions in that respect is to be served on the applicants, and lodged with the associate prior to 16 February 2001.

5.The matter be listed for further directions at 10.15 am on 20 February 2001, at which time consideration will be given to the future conduct of the proceedings, including expedition and the place of trial.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1108 OF 2000

BETWEEN: HECTOR FERNANDEZ
FIRST…