Opalswan Pty Ltd v Hartz - [2004] WADC 207

OPALSWAN PTY LTD -v- HARTZ & ORS [2004] WADC 207

Last Update: 01/11/2004

OPALSWAN PTY LTD -v- HARTZ & ORS [2004] WADC 207
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WADC 207
Case No:	CIV:1052/1998	Heard:	12 OCTOBER 2004
Coram:	ACTING PRINCIPAL REGISTRAR KINGSLEY	Delivered:	26/10/2004
Location:	PERTH	Supplementary Decision:
No of Pages:	11	Judgment Part:	1 of 1
Result:	Application dismissed - Leave refused to file a fresh substituted statement of claim
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	OPALSWAN PTY LTD (ACN 061 164 510) CLIVE RAYMOND HARTZ ANTHONY JAMES GRIST CAROLYN ANNE HARTZ
Catchwords:	Application to substitute statement of claim Proposed statement of claim raises allegation of deceit allegations unparticularised and wanting in material fact
Legislation:	Nil
Case References:	Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 Adour Holdings Pty Limited (In Liquidation) v Commonwealth Bank of Australia (1991) ATPR 41-147 Bateman v Slatyer (1987) 71 ALR 553 Belmont Finance Corporation Ltd v Williams Furniture Ltd & Ors [1979] 1 Ch 250 Bisset v Wilkinson & Anor [1926] AC 177 Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346 Bromley v Ryan (1956) 99 CLR 362 Byrd v Nunn (1877) 7 Ch D 284 Campbell v Metway Leasing Ltd (1998) ATPR P41-630 Charlie Carter Pty Ltd v SDAEA (Western Australia) (1987) 13 FCR 413 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40 Dare v Pulham (1982) 148 CLR 658 Davie v New Merton Board Mills Ltd [1959] AC 604 Davy v Garratt (1878) 7 Ch D 473 Derry & Ors v Peek (1889) 14 App Cas 337 Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152 Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 Ex parte Burrell (1866) 1 Ch D 537 Lawrance v Lord Norreys & Ors (1890) 15 App Cas 210 Multigroup Distribution Services Pty Ltd v TNT Australia & Ors (1996) ATPR P41-552 Wallingford v Mutual Society (1880) 5 App Cas 685 White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : OPALSWAN PTY LTD -v- HARTZ & ORS [2004] WADC 207 CORAM : ACTING PRINCIPAL REGISTRAR KINGSLEY HEARD : 12 OCTOBER 2004 DELIVERED : 26 OCTOBER 2004 FILE NO/S : CIV 1052 of 1998 BETWEEN : OPALSWAN PTY LTD (ACN 061 164 510)

Plaintiff

AND

CLIVE RAYMOND HARTZ

First Defendant

ANTHONY JAMES GRIST

Second Defendant

CAROLYN ANNE HARTZ

Third Defendant

(Page 2)

Catchwords:

Application to substitute statement of claim - Proposed statement of claim raises allegation of deceit - allegations unparticularised and wanting in material fact

Legislation:

Nil

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.

Keep reading for free

Create a free CaseChat account to read Opalswan Pty Ltd v Hartz and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] WADC 207
Decision Date: 26 OCTOBER 2004

CaseChat Overview and Summary

The matter before the court involved a legal dispute between Opalswan Pty Ltd and Hartz. The plaintiff sought to file a substituted statement of claim to amend its initial statement of claim. The plaintiff's proposed statement of claim raised allegations of deceit against the defendant, but these allegations were deemed unparticularised and lacking in material fact. The primary issue for the court was whether the plaintiff's application to file a substituted statement of claim should be granted.

The court considered whether the plaintiff's allegations of deceit were sufficiently particularised and contained material facts to support the claim. The court found that the plaintiff's proposed statement of claim did not sufficiently particularise the alleged deceit or provide the material facts necessary to support the claim. As a result, the court determined that the application to file a substituted statement of claim should be dismissed.

In light of the court's findings, the application to file a substituted statement of claim was dismissed, and leave was refused to the plaintiff to file a fresh substituted statement of claim. The court's decision was based on the inadequacy of the particulars and material facts provided by the plaintiff in support of the alleged deceit. The plaintiff's proposed statement of claim did not meet the necessary standards to warrant amendment and filing.

Orders

Orders of the court

Application dismissed - Leave refused to file a fresh substituted statement of

claim

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.