JM Kelly (Project Builders) Pty Ltd v Toga Development No 31 Pty Ltd (No 3)

In the matter of JM Kelly (Project Builders) Pty Ltd versus Toga Development No 31 Pty Ltd (No 3), the dispute centred on the adequacy of certain paragraphs in the Second Further Amended Statement of Claim. The application was heard in the Supreme Court of Queensland, where the first defendant sought to have specific paragraphs of the plaintiff's Statement of Claim struck out, arguing that they did not sufficiently identify the conduct that constituted the alleged representations.

The legal issue that the court had to determine was whether the paragraphs in question properly and specifically identified the conduct alleged to constitute the representations. The court's task was to assess if the plaintiff had sufficiently detailed the conduct that formed the basis of the claim, as required by the rules of pleading under the Supreme Court of Queensland.

The court found that the paragraphs in question failed to identify the alleged representations with the requisite specificity. The court held that for the claim to be valid, it was essential that the conduct forming the basis of the allegations be clearly and distinctly outlined. Consequently, the court ordered that certain paragraphs be struck out, granting the plaintiff leave to re-plead those paragraphs within 28 days. The court reserved the costs of and incidental to the application for later determination.

The final orders of the court were that paragraphs 37, 45, 52, and 57A of the Second Further Amended Statement of Claim were to be struck out. The plaintiff was given leave to re-plead those paragraphs within 28 days, and the costs of the application were reserved for further consideration.