Lesvos v Penrith Whitewater Stadium - [2005] NSWSC 693

CITATION:
Lesvos v Penrith Whitewater Stadium [2005] NSWSC 693

HEARING DATE(S): 29/4/05

JUDGMENT DATE :

22 July 2005

JUDGMENT OF:
Bell J at 1

DECISION:
1. Strike out paragraphs 4 and 5 of the amended statement of claim; 2. Strike out paragraph 8(a) of the amended statement of claim. The respondents have twenty-one days in which to re-plead; 3. Strike out the word "objectively" in paragraph 13(c), strike out subparagraphs 13(e) and 13(h). Paragraphs 13(a), (b), (c), (d), (f), (g) are to stand as separate paragraphs of the substantive pleading; 4. The respondents are to supply further particulars of their contractual claim within fourteen days of the request for the same; 5. Dismiss the balance of the claims for relief in the applicant's motion

LEGISLATION CITED:
Fair Trading Act 1987 (NSW)
Supreme Court Rules 1970
Trade Practices Act 1974 (Cth)

CASES CITED:
Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 114 ALR 355
Aussie Home Security Pty Ltd v Sales System Australia Pty Ltd [1999] SCA 145
Concrete Constructions Group v Litevale Pty Ltd [2002] NSWSC 670
General Steele Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Lesvos Pty Limited v Penrith Whitewater Stadium Limited [2004] NSWSC 441
Masters v Cameron (1954) 91 CLR 353
Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR 46-179
Scammell v Ouston [1941] AC 251
Ting v Blanche (1993) 118 ALR 543
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd, Federal Court of Australia, (unreported) 18 May 1998
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1967-1968) 118 CLR 429
Western Australia v Bond Corp Holdings Ltd (1991) 13 ATPR
Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679

PARTIES:
Lesvos Pty Limited (ACN 078 840 338) (1st Plaintiff)
Koffee Pty Limited (ACN 056 318 882) (2nd Plaintiff)
Penrith Whitewater Stadium Limited (ACN 083 662 140) (1st Defendant)
Penrith City Council (2nd Defendant)

FILE NUMBER(S):
SC 20147/02

COUNSEL:
D.E. Baran (1st and 2nd Plaintiffs)
M.S. Jacobs QC / M.S. Bambagiotto (1st and 2nd Defendants)

SOLICITORS:
Andresakis & Associates (1st and 2nd Plaintiffs)
Gadens Lawyers (1st and 2nd Defendants)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 22 July 2005

20147/02 Lesvos Pty Limited (ACN 078 840 338) v Penrith Whitewater Stadium Limited (ACN 083 662 140)
JUDGMENT

1 BELL J: The applicants, Penrith Whitewater Stadium Limited (PWS) and the Penrith City Council (the Council) move on notice for orders that the amended statement of claim filed on 9 September 2004 (the ASOC) be stayed or dismissed generally pursuant to Pt 13 r 5(1) and/or Pt 15 r 26 and/or Pt 65 r 5 of the Supreme Court Rules 1970 (the SCR). In the alternative they seek orders striking out one or more of the paragraphs of the pleading. In the further alternative they seek an order that the respondents, Lesvos Pty Limited (Lesvos) and Koffee Pty Limited (Koffee)…

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.

Keep reading for free

Create a free CaseChat account to read Lesvos v Penrith Whitewater Stadium 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: [2005] NSWSC 693
Decision Date: 22 July 2005

CaseChat Overview and Summary

The matter came before Bell J in the Supreme Court of New South Wales. The applicants, Penrith Whitewater Stadium Limited and Penrith City Council, sought orders to stay or dismiss the amended statement of claim filed by Lesvos Pty Limited and Koffee Pty Limited, or in the alternative, to strike out certain paragraphs of the pleading. The applicants contended that the pleading disclosed no reasonable cause of action and was confusing, vague, and contradictory.

The court considered the principles applicable to an application for dismissal or to strike out a pleading. The respondents' case must be "so clearly untenable that it cannot possibly succeed". The court considered the contractual claim pleaded by the respondents, which was said to be based on an agreement for an exclusive right to operate a kiosk/café at the Stadium. The applicants argued that the agreement was too uncertain to be binding and that the respondents had not pleaded a cause of action in contract.

The court found that while the pleading of the contractual claim was confused, the applicants were on notice of the case that was put against them. The court struck out certain paragraphs of the pleading and ordered the respondents to re-plead and provide further particulars. The court also struck out certain particulars that were confusing or irrelevant to the pleading of the representations relied upon for the Trade Practices Act claim. The balance of the claims for relief in the applicants' motion were dismissed.

In summary, the court found that the respondents' contractual claim was not so untenable as to warrant dismissal at that stage of the proceedings. However, the pleading needed to be clarified and particularised further. The court ordered the respondents to amend their pleading and provide further particulars within the specified time frames. The balance of the claims were dismissed.

Orders