JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: TUTT BRYANT GROUP LIMITED -v- PIGGOTT [2024] WASC 19
CORAM: MUSIKANTH J
HEARD: 30 NOVEMBER 2023
FINAL SUBMISSIONS FILED 9 JANUARY 2024
DELIVERED : 31 JANUARY 2024
FILE NO/S: CIV 1884 of 2023
BETWEEN: TUTT BRYANT GROUP LIMITED
Plaintiff
AND
ROGER STUART PIGGOTT
Defendant
Catchwords:
Procedure - Application to strike out writ - Relevant principles - Adequacy of indorsement
Procedure - Application for summary judgment - Relevant principles
Pleadings - Relevant principles - Application to strike out statement of claim - Whether matters pleaded disclose reasonable cause of action - Whether matters pleaded may prejudice, embarrass or delay fair trial of the action - Turns on own facts
Pleadings - Allegations of intentional participation or knowing involvement - Relevant principles
Trade practices - Misleading or deceptive conduct - s 4 of the ACL, future matters and accessorial liability - Relevant principles
Legislation:
Australian Consumer Law (Cth) ss 2, 4, 18, 236
Australian Consumer Law (WA)
Rules of the Supreme Court 1971 (WA), O 1 rr 4A and 4B, O 6 r 1, O 16 r 1, O 20 r 19(1)
Trade Practices Act 1974 (Cth), ss 51A, 52, 75B(1)
Result:
Application to strike out statement of claim allowed in part
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr N D C Dillon |
| Defendant | : | Mr L A Warnick SC |
Solicitors:
| Plaintiff | : | Tudori Hager Grubb |
| Defendant | : | GV Lawyers |
Cases referred to in decision:
3meg.com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128; (2012) 43 WAR 350
ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235
ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; (2014) 317 ALR 73
ACCC v Universal Sports Challenge Ltd [2002] FCA 1439
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
F & G Nominees Pty Ltd v Verdell Pty Ltd [2003] WASCA 290
Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486
Glendinning v Cuzens [2009] WASCA 21
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Gold Coast City Council v Pioneer Concrete Pty Ltd [1998] FCA 791; (1998) 157 ALR 135
Hatt v Magro [2007] WASCA 124; (2007) 34 WAR 256
Interstart Pty Ltd v Halston Capital Pty Ltd [2022] WASC 105
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- Case
- [2024] WASC 19
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the plaintiff's statement of claim disclosed a reasonable cause of action and whether it contained matters that might prejudice, embarrass, or delay the fair trial of the action. Furthermore, the court needed to assess the principles of striking out a writ, the conditions under which summary judgment could be granted, and the specific legal issues related to misleading or deceptive conduct under the ACL. The court also needed to consider the nature of the defendant's application for summary judgment and the adequacy of the supporting affidavit.
The court found that the plaintiff's claim did not disclose a reasonable cause of action regarding two of the alleged representations, but there were still real questions to be tried concerning the remaining three representations. The court emphasized that summary judgment should be granted only in the clearest of cases where the outcome is certain. Given that the plaintiff's claim involved substantial questions of law and causation that required full argument and evidence, the court was cautious in exercising its power to terminate the proceedings summarily. The court also noted that the defendant's second application for summary judgment was not adequately supported by an affidavit that verified the facts upon which the application was based. Consequently, the court refused the defendant's application for summary judgment.
The court did not make any final orders as the matter was still pending further proceedings to address the remaining issues. The court's decision underscored the importance of ensuring that summary judgment applications are supported by appropriate evidence and that such applications should not be used to dispose of difficult or substantial questions of law without a full trial.
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