Markou, Victor & anor v Hugo Investments Pty Ltd & ors [1983] FCA 373

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Trade Practices - misleading and deceptive conduct - statements

made in course of sale of video business - allegations of

fraudulent or negligent misrepresentation - breach of contractual

terms and contractual warranties arising out of some statements

Practice and Procedure - application to strike out parts of statement of claim - whether reasonable cause of action disclosed - special conditions precedent pleaded - whether strictly

conditions orecedent - matters for trial judge to determine

Trade Practices Act 1974 5.52

VICTOR MARKOU_ and LUBICA MARKOU v. HUGO INVESTMENTS PTY.

LTD. , TERENCE TITMUSS and ANDRE ROGALA

Wo. WAG 52 of 1983

Toohey J. Perth December 1983

IN THE FEDERAL COURT }

OF AUSTRALIA )

WESTERN AUSTRALIA ) No. WA G52 of 1983 ) )

DISTRICT REGISTRY GENERAL DIVISION

BETWEEN:

VICTOR MARKOU and LUBICA MARKOU

Applicants

and

HUGO INVESTMENTS PTY. LTD.

First Respondent

TERENCE TITMUSS

Second Respondent ANDRE ROGALA

Third Respondent

JUDGE MAKING ORDER : Toohey Jd. DATE OF ORDER : 16 December 1983 WHERE MADE : Perth

THE COURT ORDERS THAT:

i. The third respondent's motion dated 11 November 1983 be

dismissed.

2. The parties have liberty to apply as to the costs of the

motion.

IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) No. WA G52 of 1983 DISTRICT REGISTRY ) GENERAL DIVISION }

RETHWEEN :

VICTOR MARKOU and LUBICA MARKOU Applicants

and

HUGO INVESTMENTS PTY. LTD.

First Respondent TERENCE TITMUSS

Second Respondent ANDRE ROGALA Third Respondent

CORAM: TOOHEY J. 16 December 1983

REASONS FOR JUDGMENT

This 1s a motion by the third respondent to strike out

16 paragraphs of a statement of claim comprising 37 paragraphs.

The statement of claim is in some respects ambiguous and confusing. Some of its defects were remedied by amendments made to paras 7, 10, 11 and 23 during the hearing of the motion. Others are capable of being cured by a reconsideration of the Pleading or, in default, by a request for further and better particulars. However there still remain some objections of