MACGREGOR -v- MACGREGOR [2004] WASC 237

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 237
Case No:	CIV:1709/2003	Heard:	30 JULY 2004
Coram:	MASTER SANDERSON	Delivered:	17/11/04
No of pages:	11	Judgment Part:	1 of 1
Result:	Statement of claim struck out
Category:	B
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Parties:	KENNETH MACGREGOR IAIN MACGREGOR ZEROTH PTY LTD (ACN 008 916 925)
Catchwords:	Practice and procedure Application to strike out statement of claim Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 20 r 8(1)
Case References:	Bruce v Odhams Press, Limited [1936] 1 KB 697 Chandler & Ors v Water Corporation [2001] WASC 166 Hanky v Clavering [1942] 2 KB 326 United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd (1968) 1 All ER 104 Baldry v Jackson [1976] 2 NSWLR 415 Briggs v Curtis Quick & Associates [1999] WASCA 139 Hooker Corporation Ltd v Commonwealth (1986) 82 FLR 321 Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167 Silkline Investments Pty Ltd & Ors v Challenge Ltd & Anor [1988] WASC 319 Vandervell Trustees Ltd v White [1970] 3 All ER 16 Water Authority of Western Australia v AIL Holdings Pty Ltd (No 2) (1992) 10 WAR 233

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MACGREGOR -v- MACGREGOR [2004] WASC 237 CORAM : MASTER SANDERSON HEARD : 30 JULY 2004 DELIVERED : 17 NOVEMBER 2004 FILE NO/S : CIV 1709 of 2003 BETWEEN : KENNETH MACGREGOR

Plaintiff

AND

IAIN MACGREGOR

Defendant

FILE NO/S : CIV 1665 of 2004 BETWEEN : KENNETH MACGREGOR

Plaintiff

AND

ZEROTH PTY LTD (ACN 008 916 925)

Defendant

Catchwords:

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

(Page 2)

Legislation:

Rules of the Supreme Court1971 (WA), O 20 r 8(1)

Result:

Statement of claim struck out

Category: B

Representation:

CIV 1709 of 2003

Counsel:

Plaintiff : Mr S Penglis

Defendant : Mr W Martin QC

Solicitors:

Plaintiff : Freehills

Defendant : Hager & Partners

CIV 1665 of 2004

Counsel:

Plaintiff : Mr S Penglis

Defendant : Mr W S Martin QC

Solicitors:

Plaintiff : Freehills

Defendant : Hager & Partners

Case(s) referred to in judgment(s):

Bruce v Odhams Press, Limited [1936] 1 KB 697
Chandler & Ors v Water Corporation [2001] WASC 166
Hanky v Clavering [1942] 2 KB 326

(Page 3)

United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd (1968) 1 All ER 104

Case(s) also cited:

Baldry v Jackson [1976] 2 NSWLR 415
Briggs v Curtis Quick & Associates [1999] WASCA 139
Hooker Corporation Ltd v Commonwealth (1986) 82 FLR 321
Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167
Silkline Investments Pty Ltd & Ors v Challenge Ltd & Anor [1988] WASC 319
Vandervell Trustees Ltd v White [1970] 3 All ER 16
Water Authority of Western Australia v AIL Holdings Pty Ltd (No 2) (1992) 10 WAR 233

(Page 4)

1 MASTER SANDERSON:…

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.

Continue reading Macgregor v Macgregor

Details

AGLC: Macgregor v Macgregor [2004] WASC 237
Case: [2004] WASC 237
Decision Date

CaseChat Overview and Summary

In the case of Macgregor v Macgregor, the Supreme Court of Western Australia addressed an application to strike out certain paragraphs of the plaintiff's statement of claim. The plaintiff, Kenneth Macgregor, had filed two actions against his brother, Iain Macgregor, and a company, Zeroth Pty Ltd, alleging breaches of agreements related to the ownership and transfer of shares in Bakewell Foods Pty Ltd. The defendants sought to strike out multiple paragraphs of the statement of claim, arguing they were irrelevant, vague, or did not constitute material facts necessary for the cause of action. The court agreed with many of the defendants' complaints, finding that several paragraphs contained irrelevant historical background and other details that were not necessary for the court to understand the material facts of the case. The court emphasised that pleadings should only include facts necessary to formulate a complete cause of action, without delving into evidence or narrative details. Certain paragraphs were struck out as they did not clearly identify the necessary facts or legal basis for the plaintiff's claims. The court also found that some paragraphs were deficient in specifying the precise obligations under the alleged agreements, leading to uncertainty and ambiguity. As a result, the court struck out specific paragraphs that did not sufficiently identify the obligations or the entities involved, ruling that the plaintiff's claims could not proceed without clearer and more precise allegations.

Orders