CATHERINE JOY McGEACHIE RICHARD MITFORD ROWELL GRAHAM SYDNEY BENSTEAD AURELIA MARIA MAZZOLENI LEE FRANCES NASH WESLEY IAN CHARLES NASH JAN IRVINE AMRIT KENDRICK GARY KENDRICK RICHARD CLARK DENNIS BEERE JURGEN WERNER PREUSS GAVAN KELLY SILVER FOX INVESTMENTS PTY LTD (ACN 081 888 048) MIDWAY ASSET PTY LTD (ACN 097 037 557) CHURCHLANDS HOLDINGS PTY LTD (ACN 098 551 645) PETER ANDRE GRANT
Catchwords:
Practice and procedure Application for leave to amend the statement of claim Whether proposed pleading embarrassing Turns on own facts
[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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AGLC
McGEACHIE v Clark [2006] WASC 238
Case
[2006] WASC 238
Decision Date
CaseChat Overview and Summary
The case of McGEACHIE v CLARK was heard in the Supreme Court of Western Australia by Master Newnes on 24 August 2006. The plaintiffs, who are the registered proprietors of lots in a strata development, sought to amend their statement of claim. The defendants objected to the amendment on the grounds that the proposed pleading was prolix, contained irrelevant allegations and narrative, and failed to identify with sufficient clarity the case the defendants must meet. The Court considered that the pleading was replete with assertions of facts that did not appear to be material to the causes of action intended to be pleaded, making it difficult to discern with any real clarity what acts were in fact relied upon for the various causes of action. The Court also considered that the pleading was confusing and did not contain a statement in summary form of the material facts as brief as the nature of the case admitted. On this basis alone, the Court refused leave to amend on the basis of the minute alone.
The Court also considered the specific causes of action relied upon in the proposed pleading, including breach of contract, agreements to injure, interference with contractual relations, misleading or deceptive conduct, and unconscionable conduct. The Court found that the pleading was embarrassing and would be liable to be struck out due to its vagueness, ambiguity, and lack of clarity. The pleading did not sufficiently identify the conduct complained of or the respects in which it was alleged that the conduct of each of the defendants was misleading or deceptive. The Court also found that the claims of unlawful interference with contractual relations against some of the defendants were unclear and that there were no facts pleaded which were capable of establishing that the plaintiffs had suffered loss and damage as a result of the alleged interference.
The Court concluded that the pleading was confusing and made it impossible to reach any firm view as to whether any of the causes of action alleged were arguably open to the plaintiffs. Before that could properly be considered, the pleading must be put in a proper form, and the Court refused leave to amend in terms of the minute of proposed amended statement of claim. The Court gave leave to the plaintiffs to file a fresh minute within a time to be fixed.