GOSS & ORS -v- MFA FINANCE PTY LTD & ORS [2000] WASC 200

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 200
Case No:	CIV:1479/2000	Heard:	2 AUGUST 2000
Coram:	MASTER SANDERSON	Delivered:	10/08/00
No of pages:	21	Judgment Part:	1 of 1
Result:	Application dismissed
PDF Version

Parties:	JAMES ALBERT GOSS EVELYN MARGARET GOSS GARRY GEORGE MEEK ROSALIND MEEK SAMUEL GROTTEN KATHERINE GROTTEN JOYCE ELIZABETH EDGAR ANITA LYON COLORADO HOLDINGS PTY LTD (ACN 009 117 033) RONALD PIPER EDGAR GEORGE THOMAS ROBINSON SHEILA NORMAN ROBINSON HUGH ERNEST GREGORY HELEN GREGORY ELFRIEDA ELIZABETH BATTLEY ERIC LAWRENCE CREW PAMELA ANNE SEYMOUR JEFFREY MARK PASKULICH PAULINE MARIE PASKULICH MFA FINANCE PTY LTD (ACN 068 307 148) HERBERT ROSS FISHER NEIL JAMES PINNER KENNETH WALTER COURT RUSSELL JOHN HAWKINS MICHAEL BERNARD BRENNAN KOTT GUNNING (A Firm) RICHARD CLANAN MARR SAGAR PTY LTD STEPHEN ADAIR OLIFENT
Catchwords:	Practice and procedure Application to strike out statement of claim Turns on its own facts
Legislation:	Fair Trading Act, s 10 and s 82(4)
Case References:	Amadio Pty Ltd v Henderson (1998) 81 FCR 149 Astley v Austrust Ltd [1999] HCA 6 Orszulak v Hoy (1989) A Tort Rep 69,181 Pegrum v Fatharly (1996) 14 WAR 92 Yager v Fishman & Co [1944] 1 All ER 552 Groom v Crocker [1939] 1 KB 194 Hawkins v Clayton (1988) 164 CLR 539 Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 Lanphier v Phipos (1838) 8 Car & P 457 McCarthy v McIntyre [1999] FCA 784 Philip Morris v Nixon [2000] FCA 229 Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GOSS & ORS -v- MFA FINANCE PTY LTD & ORS [2000] WASC 200 CORAM : MASTER SANDERSON HEARD : 2 AUGUST 2000 DELIVERED : 10 AUGUST 2000 FILE NO/S : CIV 1479 of 2000 BETWEEN : JAMES ALBERT GOSS

EVELYN MARGARET GOSS

First Plaintiffs

GARRY GEORGE MEEK

ROSALIND MEEK

Second Plaintiffs

SAMUEL GROTTEN

KATHERINE GROTTEN

Third Plaintiffs

JOYCE ELIZABETH EDGAR

Fourth Plaintiff

ANITA LYON

Fifth Plaintiff

COLORADO HOLDINGS PTY LTD (ACN 009 117 033)

Sixth Plaintiff

RONALD PIPER EDGAR

JOYCE ELIZABETH EDGAR

Seventh Plaintiffs

(Page 2)

GEORGE THOMAS ROBINSON

SHEILA NORMAN ROBINSON

Eighth Plaintiffs

HUGH ERNEST GREGORY

HELEN GREGORY

Ninth Plaintiffs

ELFRIEDA ELIZABETH BATTLEY

Ten Plaintiff

ERIC LAWRENCE CREW

Eleventh Plaintiff

PAMELA ANNE SEYMOUR

Twelth Plaintiff

JEFFREY MARK PASKULICH

PAULINE MARIE PASKULICH

Thirteenth Plaintiffs

AND

MFA FINANCE PTY LTD (ACN 068 307 148)

First Defendant

HERBERT ROSS FISHER

Second Defendant

NEIL JAMES PINNER

KENNETH WALTER COURT

Third Defendants

RUSSELL JOHN HAWKINS

MICHAEL BERNARD BRENNAN

Fourth Defendants

KOTT GUNNING (A Firm)

Fifth Defendant

RICHARD CLANAN MARR

First Third Party

(Page 3)

SAGAR PTY LTD

Second Third Party

STEPHEN ADAIR OLIFENT

Third Third Party

Catchwords:

Practice and procedure - Application to strike out statement of claim - Turns on its own facts

Legislation:

Fair Trading Act, s 10 and s 82(4)

Result:

Application dismissed

Representation:

Counsel:

First Plaintiffs : Mr D H…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] WASC 200
Decision Date: 10 AUGUST 2000

CaseChat Overview and Summary

The dispute in Goss v MFA Finance Pty Ltd arose from an application by the defendant, MFA Finance Pty Ltd, to strike out the plaintiff's statement of claim on the grounds that it disclosed no reasonable cause of action. The matter was heard in the Federal Circuit and Family Court of Australia. The plaintiff, Mr Goss, sought to recover compensation for alleged misleading or deceptive conduct and unconscionable conduct under the Australian Consumer Law.

The primary legal issue before the court was whether the plaintiff's statement of claim was sufficient to warrant a trial. MFA Finance argued that the plaintiff had failed to allege sufficient facts to establish a cause of action for misleading or deceptive conduct and unconscionable conduct. The court had to determine whether the plaintiff's allegations, though not detailed, were sufficient to justify proceeding to a trial. It was a matter of whether the plaintiff's statement of claim was fatally deficient or merely needed further elaboration.

The court found that the application to strike out the statement of claim should be dismissed. The judge held that the plaintiff's statement of claim, though lacking in detail, did not fail to disclose a reasonable cause of action. The court noted that the application to strike out was a matter that turned on its own facts and could not be resolved on a theoretical basis. While the plaintiff's statement of claim was not fully developed, it provided enough information for the matter to proceed to a trial. The application was dismissed, allowing the plaintiff's case to continue.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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