Nagy, G.M v Masters Dairy Ltd - [1995] FCA 482

PRACTICE AND PROCEDURE - pleadings - whether embarrassing - pleadings in contract - pleadings relating to alleged misleading and deceptive conduct - whether particulars would remedy - whether summary judgment appropriate in respect of contract action

Rules of the Federal Court O11 r16, O20 r2

Turner v Kinian P/L (French J, 19 August 1992, unreported)
TPC v Pioneer Concrete (Qld) Pty Ltd (1994) 124 ALR 685
Dalgety Australia Ltd v Rubin (FCt, SCt of WA, 1984, library no. 5485; unreported)
Kimberley Downs Pty Ltd v Western Australia (Master Staples, SCt of WA, 1986, library no. 6414; unreported)
Summerland v NZI Australia Ltd (Foster J, 28 October 1991, unreported).
Schwartz v South Australia Public Service Savings and Loans Society Ltd and ors (Branson J, 16 September 1994, unreported).
Beach Petroleum ML v Johnson (1991) 105 ALR 456
H1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181
Bruce v Odhams Press Ltd [1936] 1 KB 697
Murray v Macquarie Bank & anor (Spender J, 4 March 1992, unreported)
Day v William Hill (Park Lane) LD [1949] 1 KB 632
Gibson v Manchester City Council [1979] 1 WLR 294
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256
Financings Ltd v Stimson [1962] 1 WLR 1184
Webster v Lampard (1993) 177 CLR 598
Demagogue Pty Ltd v Rameski (1992) 39 FCR 31
Warner v Elders Rural Finance Ltd (1993) 41 FCR 399
Payne v Cave (1789) 3 Term Rep 148 (100 ER 502); [1775-1802] ALL ER 492
Goldsbrough Mort & Co Ltd v Quinn (1910) 10 CLR 674

GABOR MARTIN NAGY and PATRICIA DOROTHY NAGY v MASTERS DAIRY LIMITED
NO WAG 27 OF 1995

R D NICHOLSON J
PERTH
10 JULY 1995

IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 27 OF 1995

B E T W E E N: GABOR MARTIN NAGY

First Applicant

and

PATRICIA DOROTHY NAGY

Second Applicant

and

MASTERS DAIRY LIMITED
(ACN: 008 671 761)

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: R D NICHOLSON J

DATE OF ORDER: 10 JULY 1995

WHERE MADE: PERTH

THE COURT ORDERS THAT:

Paragraphs 3, 5, 10, 11, 12 and 13 of the applicant's statement of claim be struck out.

The applicants pay the respondent's costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO WAG 27 OF 1995

B E T W E E N GABOR MARTIN NAGY
First Applicant

and

PATRICIA DOROTHY NAGY

Second Applicant

and

MASTERS DAIRY LIMITED
(ACN: 008 671 761)

Respondent

CORAM:R D NICHOLSON J
DATE:10 JULY 1995
PLACE:PERTH

REASONS FOR JUDGMENT

R D NICHOLSON J

Application is made on behalf of the respondent that certain paragraphs of the applicants' amended statement of claim be struck out pursuant to O11 r16 of the Federal Court Rules ("FCR") and that summary judgment be entered pursuant to O20 r2 of the FCR. The pleadings fall conveniently…

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: [1995] FCA 482
Decision Date: 10 JULY 1995

CaseChat Overview and Summary

Gabor Martin Nagy and Patricia Dorothy Nagy have filed a claim against Masters Dairy Limited in the Federal Court of Australia, Western Australia District Registry. The plaintiffs, the Nagys, seek redress for alleged breaches of contract and misleading and deceptive conduct under the Trade Practices Act. Masters Dairy Limited has moved to have certain paragraphs of the Nagys' amended statement of claim struck out and for summary judgment to be entered in its favour. The court must determine whether the Nagys' pleadings sufficiently disclose a cause of action in contract and under the Trade Practices Act to warrant further proceedings.

The central legal issues revolve around the sufficiency of the Nagys' pleadings to establish a cause of action in contract and under the Trade Practices Act. Specifically, the court must consider whether the Nagys' pleadings regarding the contract and alleged misleading and deceptive conduct are adequate to allow the case to proceed. The court must also consider whether particulars could remedy any deficiencies in the pleadings.

The court held that while the Nagys' pleadings regarding the contract were deficient in some respects, they did not warrant striking out the entire cause of action. However, the pleadings relating to the alleged misleading and deceptive conduct under the Trade Practices Act were found to be wholly inadequate. The court found that the Nagys' submission that the respondent's failure to notify them of the withdrawal of an offer constituted misleading and deceptive conduct lacked merit, as an offeror has a legal right to withdraw an offer at any time. Accordingly, the court struck out the relevant paragraphs of the Nagys' statement of claim and dismissed their case.

The court ordered that certain paragraphs of the Nagys' amended statement of claim be struck out and that the Nagys pay the respondent's costs. The Nagys' claim was dismissed in its entirety.

Orders