McGEACHIE v Clark

Case [2006] WASC 238


McGEACHIE & ORS -v- CLARK & ORS [2006] WASC 238



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2006] WASC 238
Case No:CIV:1901/200524 AUGUST 2006
Coram:MASTER NEWNES31/10/06
16Judgment Part:1 of 1
Result: Application to amend refused
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Parties: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

Legislation:

Fair Trading Act 1987 (WA), s 10
Planning and Development Act 2005 (WA), s 136
Town Planning and Development Act 1928 (WA), s 20
Trade Practices Act 1974 (Cth), s 51A, s 51AA

Case References:

Atkinson v Fitzwalter [1987] 1 WLR 201
Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Biscayne Partners Pty Ltd v Valance Corporation Pty Ltd [2003] NSWSC 874
Dare v Pulham (1982) 148 CLR 658
Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32
O'Brien v Dawson (1942) 66 CLR 18
Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 23
Rutherford v Poole [1953] VLR 130
Said v Butt [1920] 3 KB 497

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 197 ALR 153
Australian Liquor, Hospitality and Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) Aust Torts Reports 81­655
Baltic Shipping Co v Dillon (1993) 111 ALR 289
Bednall v Wesley College [2005] WASC 101
Chandler v Water Corporation [2001] WASC 166
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383
Douglas v Hello! Ltd (2005) 65 IPR 449
Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169
Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490
Gould v Vaggelas (1984) 157 CLR 215
Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536
Kuwait Oil Tanker Co SAK v Al Bader [2000] 2 All ER (Comm) 271
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173
McWilliam v Penthouse Publications Ltd [2001] NSWCA 237
Muschinski v Dodds (1985) 160 CLR 583
Official Assignee v Dowling [1964] NZLR 578
Rookes v Barnard [1964] AC 1129
Short v City Bank of Sydney (1912) 15 CLR 148
Speedworx Pty Ltd v Bunbury Car Club (Inc) [2005] WASC 16
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245

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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.

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