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Redmond v Devonport Pty Ltd

Redmond v Devonport Pty Ltd

Case [2004] WASC 176 20 August 2004

Jurisdiction

Implication of Terms

Fiduciary Duty

Unconscionable Conduct

Civil Litigation & Procedure

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REDMOND -v- DEVONPORT PTY LTD & ORS [2004] WASC 176

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 176
Case No:	CIV:1285/2004	Heard:	19 JULY 2004
Coram:	MASTER NEWNES	Delivered:	20/08/04
No of pages:	11	Judgment Part:	1 of 1
Result:	Statement of claim struck out in part
Category:	B
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Parties:	GAVAN ANDREW REDMOND DEVONPORT PTY LTD (ACN 009 437 049) ALBERT LAURENCE GERICK SHERLOCK BAY NICKEL CORPORATION LTD (ACN 008 942 809)
Catchwords:	Practice and procedure Application to strike out statement of claim Turns on own facts
Legislation:	Trade Practices Act 1974 (Cth), s 4, s 51AC
Case References:	Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Joachimson v Swiss Bank Corp [1921] 3 KB 110 McKenzie v Albany Finance Ltd [2003] WASC 100 United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2002] NSWSC 1178 Wik Peoples v State of Queensland (1996) 187 CLR 1 Young v Queensland Trustees Ltd (1957) 99 CLR 560 Crestland Investments Pty Ltd v Parisi Holdings Pty Ltd [2004] WASC 57 Gardiner v Ray [1999] WASC 140 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Knowles v Roberts (1888) 38 Ch D 263 McLean v Lake Como Venture Pty Ltd [2003] QCA 562 Reading v R [1949] 2 KB 232 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Searle v Western Australian Newspapers Holdings Ltd [2004] WASC 11 Stanley Drilling Co Pty Ltd v Australia and New Zealand Banking Group Ltd [2003] WASC 130 Tito v Waddell (No 2) [1977] Ch 106 Union Gold Mining Co NL v Baker Construction (Australia) Pty Ltd, unreported; SCt of WA (Owen J); Library No 940372; 11 May 1994

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : REDMOND -v- DEVONPORT PTY LTD & ORS [2004] WASC 176 CORAM : MASTER NEWNES HEARD : 19 JULY 2004 DELIVERED : 20 AUGUST 2004 FILE NO/S : CIV 1285 of 2004 BETWEEN : GAVAN ANDREW REDMOND

Plaintiff

AND

DEVONPORT PTY LTD (ACN 009 437 049)

First Defendant

ALBERT LAURENCE GERICK

Second Defendant

SHERLOCK BAY NICKEL CORPORATION LTD (ACN 008 942 809)

Third Defendant

Catchwords:

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

Legislation:

Trade Practices Act 1974 (Cth), s 4, s 51AC

(Page 2)

Result:

Statement of claim struck out in part

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett

First Defendant : Mr C D Belyea

Second Defendant : Mr C D Belyea

Third Defendant : Mr C D Belyea

Solicitors:

Plaintiff : Bennett & Co

First Defendant : Clayton Utz

Second Defendant : Clayton Utz

Third Defendant : Clayton Utz

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

Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Joachimson v Swiss Bank Corp [1921] 3 KB 110
McKenzie v Albany Finance Ltd [2003] WASC 100
United Rural Enterprises Pty…

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.

Continue reading Redmond v Devonport Pty Ltd

Details

AGLC: Redmond v Devonport Pty Ltd [2004] WASC 176
Case: [2004] WASC 176
Decision Date

CaseChat Overview and Summary

In the case of Redmond v Devonport Pty Ltd [2004] WASC 176, the plaintiff, Gavan Andrew Redmond, sought to recover shares that he had provided as security for a loan from Devonport Pty Ltd. The defendants, Devonport Pty Ltd, Albert Laurence Gerick, and Sherlock Bay Nickel Corporation Ltd, applied to strike out certain parts of the plaintiff's amended statement of claim. The court was required to determine whether the plaintiff's claims disclosed a reasonable cause of action or were otherwise embarrassing. The court found that the plaintiff's claims were defective and struck them out, allowing the plaintiff an opportunity to replead.

The court first considered the implied term in paragraph 8 of the amended statement of claim, which stated that the loan was repayable on demand. The plaintiff argued that such an implication would be drawn in the circumstances of the present case. However, the court found that no circumstances had been pleaded that would lead to the implied term, and therefore, it was struck out with leave to replead. Next, the court considered the fiduciary duties pleaded in paragraph 11. The court found that the particulars were not capable of establishing a fiduciary duty and that the matters relied upon to give rise to the fiduciary duty should be pleaded as material facts. As a result, the plea was struck out with leave to replead.

The court then considered the claims under section 51AC of the Trade Practices Act 1974 (Cth). The court found that the plea in paragraph 24 was defective because it failed to plead how it was maintainable that the conduct was in trade or commerce or the precise conduct complained of by the plaintiff. However, the court accepted that the plea was arguably sufficient and would not strike it out on that basis. The court also considered the claim against the third defendant, Sherlock Bay Nickel Corporation Ltd, and found that it was not a basis upon which the claim should be struck out.

In conclusion, the court struck out paragraphs 8, 11, 23, and 24 of the amended statement of claim, with leave to the plaintiff to replead. The court allowed the plaintiff an opportunity to amend the statement of claim to address the deficiencies identified in the judgment.

Orders