MURDOCH UNIVERSITY -v- COMPREHENSIVE EDUCATION CENTRE PTY LTD & ORS [2003] WASC 161

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 161
Case No:	CIV:2516/2002	Heard:	3 JULY 2003
Coram:	MASTER SANDERSON	Delivered:	26/08/03
No of pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	MURDOCH UNIVERSITY COMPREHENSIVE EDUCATION CENTRE PTY LTD MURDOCH COLLEGE PROPERTIES PTY LTD MURDOCH COLLEGE (INC) MUNJO CORPORATION PTY LTD GOTHAM NOMINEES PTY LTD
Catchwords:	Practice and procedure Application to strike out statement of claim Turns on own facts
Legislation:	Nil
Case References:	Boranga v Flintoff (1997) 19 WAR 1 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Taylor v Johnson (1983) 151 CLR 422 Australian Guarantee Corporation Ltd v Balding (1930) 43 CLR 140 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Permanent Building Society v Wheeler (1992) 10 WAR 109

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MURDOCH UNIVERSITY -v- COMPREHENSIVE EDUCATION CENTRE PTY LTD & ORS [2003] WASC 161 CORAM : MASTER SANDERSON HEARD : 3 JULY 2003 DELIVERED : 26 AUGUST 2003 FILE NO/S : CIV 2516 of 2002 BETWEEN : MURDOCH UNIVERSITY

Plaintiff

AND

COMPREHENSIVE EDUCATION CENTRE PTY LTD

First Defendant

MURDOCH COLLEGE PROPERTIES PTY LTD

Second Defendant

MURDOCH COLLEGE (INC)

Third Defendant

MUNJO CORPORATION PTY LTD

GOTHAM NOMINEES PTY LTD

Fourth Defendants

Catchwords:

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

(Page 2)

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett

First Defendant : Mr M J McCusker QC & Ms P E Cahill

Second Defendant : No appearance

Third Defendant : No appearance

Fourth Defendants : Mr M J McCusker QC & Ms P E Cahill

Solicitors:

Plaintiff : Bennett & Co

First Defendant : Jackson McDonald

Second Defendant : No appearance

Third Defendant : No appearance

Fourth Defendants : Jackson McDonald

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

Boranga v Flintoff (1997) 19 WAR 1
Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Taylor v Johnson (1983) 151 CLR 422

Case(s) also cited:

Australian Guarantee Corporation Ltd v Balding (1930) 43 CLR 140

(Page 3)

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Permanent Building Society v Wheeler (1992) 10 WAR 109

(Page 4)

1 MASTER SANDERSON: This is the first and fourth defendants' application to strike out the plaintiff's amended statement of claim filed 17 March 2003. When the application was called on for hearing on 6 June 2003 the parties agreed that the first and fourth defendants' difficulties with the statement of claim might be resolved if the plaintiff provided further and better particulars…

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.

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Details

Case: [2003] WASC 161
Decision Date

CaseChat Overview and Summary

Murdoch University brought an action against Comprehensive Education Centre Pty Ltd, Murdoch College Properties Pty Ltd, Murdoch College (Inc) and Munjo Corporation Pty Ltd, and Gotham Nominees Pty Ltd in the Supreme Court of Western Australia. The dispute centres around a series of agreements pertaining to the establishment and operation of a secondary educational institution. The defendants sought to strike out the plaintiff's amended statement of claim on various grounds, including irrelevance, ambiguity, and failure to provide particulars. The primary issues before the court were whether certain paragraphs of the plaintiff's statement of claim were relevant and whether they contained sufficient particulars to withstand the defendants' objections.

The court found that the paragraphs in question were relevant and not so prejudicial as to warrant striking out. The court held that the plaintiff's plea of the objective factual matrix surrounding the agreements was appropriate and necessary to understand the context and intentions of the parties. The court also found that the plaintiff's alternative pleas concerning the meaning of the term "post-secondary" and the plea of common mistake were arguable and should not be struck out. The court concluded that the amended statement of claim was in proper form and dismissed the application to strike out. The defendants were ordered to pay the costs of the application, including reserved costs.

The court's decision ensures that the plaintiff's amended statement of claim remains intact, allowing the parties to proceed with the litigation. The court's reasoning highlights the importance of providing sufficient particulars and the relevance of the objective factual matrix in interpreting contractual agreements. The dismissal of the application to strike out ensures that the dispute can be resolved through the merits of the case rather than procedural objections.

Orders