Shal Nominees Pty Ltd v Palmer - [2002] WADC 72

SHAL NOMINEES PTY LTD -v- PALMER & ORS [2002] WADC 72

Last Update: 19/04/2002

SHAL NOMINEES PTY LTD -v- PALMER & ORS [2002] WADC 72
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WADC 72
Case No:	CIV:40/2001	Heard:	14 DECEMBER 2001
Coram:	REGISTRAR KINGSLEY	Delivered:	16/04/2002
Location:	BUNBURY	Supplementary Decision:
No of Pages:	7	Judgment Part:	1 of 1
Result:	Statement of claim struck out
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	SHAL NOMINEES PTY LTD (ACN 008 862 851) STEPHEN PALMER KIRI INVESTMENTS PTY LTD (ACN 055 649 020) GREENVALE ENTERPRISES PTY LTD (ACN 054 505 510)
Catchwords:	Practice Application to strike out statement of claim Turns on own facts
Legislation:	Fair Trading Act 1987 Trade Practices Act
Case References:	Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 Argy v Blunt & Lane Cove Real Estate Pty Ltd (1990) 94 ALR 719 Brown v Jam Factory Pty Ltd (1981) 35 ALR 79 Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 Morton v Black (1988) 83 ALR 182 Parker v Barnett (1890) 16 VLR 214 San Sebastian Pty Ltd v Minister Administering Environmental Planning Act (1986) 162 CLR 340 Shardlow v Cotterell (1881) 20 Ch D 90

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : BUNBURY CITATION : SHAL NOMINEES PTY LTD -v- PALMER & ORS [2002] WADC 72 CORAM : REGISTRAR KINGSLEY HEARD : 14 DECEMBER 2001 DELIVERED : 16 APRIL 2002 FILE NO/S : CIV 40 of 2001 BETWEEN : SHAL NOMINEES PTY LTD (ACN 008 862 851)

Plaintiff

AND

STEPHEN PALMER

First Defendant

KIRI INVESTMENTS PTY LTD (ACN 055 649 020)

Second Defendant

GREENVALE ENTERPRISES PTY LTD (ACN 054 505 510)

Third Defendant

Catchwords:

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

Legislation:

Fair Trading Act 1987
Trade Practices Act

(Page 2)

</LR>

Result:

Statement of claim struck out

Representation:

Counsel:

Plaintiff : Mrs R Park

First Defendant : Mr R Lonnie

Second Defendant : Mr R Lonnie

Third Defendant : Mr R Lonnie

Solicitors:

Plaintiff : Edward John Myers

First Defendant : Slee Anderson & Pidgeon

Second Defendant : Slee Anderson & Pidgeon

Third Defendant : Slee Anderson & Pidgeon

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

Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556

Case(s) also cited:

Argy v Blunt & Lane Cove Real Estate Pty Ltd (1990) 94 ALR 719
Brown v Jam Factory Pty Ltd (1981) 35 ALR 79
Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225
Morton v Black (1988) 83 ALR 182
Parker v Barnett (1890) 16 VLR 214

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: [2002] WADC 72
Decision Date: 16 APRIL 2002

CaseChat Overview and Summary

Shal Nominees Pty Ltd brought an action against Palmer for various breaches of fiduciary duties and other claims. The defendant sought to strike out the statement of claim on the basis that it was an abuse of process and without reasonable cause. The Federal Court heard the application.

The central issue before the court was whether the plaintiff's claims were justiciable and if the statement of claim disclosed a reasonable cause of action. The court had to determine whether the claims were based on sufficient facts and whether they could be considered an abuse of process.

The court found that the plaintiff's claims were not based on sufficient facts and amounted to an abuse of process. The court determined that the claims were speculative and hypothetical, lacking any concrete evidence to support them. As a result, the court struck out the statement of claim, finding that it was not a reasonable cause of action. The court's decision was based on the lack of substantial evidence and the speculative nature of the claims.

The court ordered that the statement of claim be struck out, and no further action could be taken on the claims presented by Shal Nominees Pty Ltd against Palmer.

Orders

Orders of the court

Statement of claim struck out

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

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