x me errr hece JUDGMENT No. b10/21.. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G160 of 1987 ) GENERAL DIVISTON JUDGE MAKING ORDER: PINCUS J. BETWEEN: SHAAB ELSEHALY and HASSANAT ELSEHALY Applicants AND: DESMOND ROY MITCHELL First Respondent AND: WAYNE MICHAEL McCRAE Second Respondent AND: KENNETH NOEL PENFOLD AND: OAK BRAND PTY. LTD. AND: TAYLOR HOLDINGS PTY. LTD. Third Respondent Fourth Respondent Fifth Respondent MINUTES OF ORDER DATE OF ORDER: WHERE MADE: 6 NOVEMBER 1987 BRISBANE THE COURT ORDERS THAT: (1) (2) (3) (4) (5) NOTE: the amended statement of claim, filed on 3 November 1987, be struck out; the applicants have leave to deliver a further amended statement of claim, on or before 23 November 1987, without prejudice to the respondents' right to apply further in relation thereto; that the application for directions, which was adjourned to today, be adjourned to a date to be fixed by the Registrar; that the costs of the first, third, fourth, and fifth respondents of today's hearing be their costs in the proceedings, as against the applicants; that the costs of the second respondent, in relation to the notice of motion heard today, be taxed and paid by the applicants. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. Te Tp te ee ea EN tpn ee ee ee oe an TT? be t IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) GENERAL DIVISION ) OLD Gi60 of 1987 BETWEEN: SHAAB ELSEHALY and HASSANAT ELSEHALY AND: DESMOND ROY MITCHELL AND: WAYNE MICHAEL McCRAR AND: KENNETH NOEL PENFOLD AND: OAK BRAND PTY. LTD. Applicants First Respondent Second Respondent Third Respondent Fourth Respondent AND: TAYLOR HOLDINGS PTY. LTD. PINCUS J. Fifth Respondent 6 NOVEMBER 1987 EX TEMPORE REASONS FOR JUDGMENT In this matter, Mr. O0'Donnell of counsel for the second respondent complains of the form of the amended statement of claim filed on 3 November 1987. In the course of what I regard as a useful discussion with counsel for the applicants, it has become clear that the statement of claim does not, ina number of respects, accord with the instructions given by the applicants. wt i en een eee . Yee - " SDE eee eee ote ee ye ee "owls c The respects in which it does so, and those in which it does not - do so, are of importance. As Mr. O'Donnell correctly points out, the case is one in which fraud is alleged, and some precision in the process of pleading is essential. mo a In paragraph 18, it is alleged, among other things, that the second respondent represented that the shares there mentioned would have a value of $188,500. In the proposed amendment of the statement of claim, which was handed to me by counsel - and which I have marked "A"", initialled, dated, and placed with the papers — that allegation is repeated. I am, however, told that there is no evidence available that the figure $188,500 was ever mentioned, and what was intended to be conveyed was that in the result there was a gap of $188,500, which was intended to be, but was not, filled by the value of the shares. If that is so, then it must be said. It cannot be alleged, falsely, that an allegation was made that the shares would have a value of $188,500. Further, in the same paragraph, it is said (in the amended version) that the shares would have a value of at least $200,000. By way of particulars of the allegation, it is asserted that the second respondent said that the shares would be worth at least $5. Now, one cannot be particulars of the other. Since there were nearly 70,000 shares, an allegation that the shares would have a value of at least $200,000, or in the vicinity of the 200,000, cannot be supported by particulars that 70,000 shares, approximately, were to be worth at least $5 each. That also needs some attention. tire ew Ae eee eve me ay ce TN: aa seen, tas Again, in paragraph 18, particulars as against the first respondent ~— who, curiously enough, makes no complaint of this - set out a number of misrepresentations, the falsity of which is said to be alleged in paragraph 19. Examination of paragraph 19, however, makes it clear that the pleader has overlooked specifying the respect in which the false representations in paragraph 19 were so. - The attack made by Mr. O'Donnell also relates to paragraphs 27, 28 and 29, which I find quite obscure. Mr. QO'Donnell urges me to strike out portions of the application, because he says - and there is something in this - that it is clear from the discussion I have had with counsel, and from the present form of the pleading, that certain of the claims for relief in paragraph B of the application will not be able to he supported. Although there 138 a case for striking out part of paragraph B, I prefer, in the interests of the applicants, to afford their counsel an opportunity to produce a further version of the amended statement of claim, before determining what to do about the application. It may be that counsel, either by himself or with the assistance of another counsel, may reach the conclusion that the application also requires to be amended, in which case, no doubt, leave to do so will be sought. I have reached the firm conclusion that the amended statement of claim, filed on 3 November 1987, is not in such a. form as to enable the case conveniently to be tried, nor in such a cera Spreecre 7 vere ogee rae ee arr ' sorta ma woes form as to enable the second respondent to know precisely what the case against him. As to the former point, I am conscious the fact that the respondents other than the second have made complaint about the pleading, but were there- no application that behalf, I would of my own motion require the pleading to redone, in view of its deficiencies. The orders will therefore he: -is of no in be {1) that the amended statement of claim, filed on 3 November 1987, be struck out; (2) the applicants have leave to deliver a further amended statement of claim, on or before 23 November 1987, without prejudice to the respondents' right to apply further relation thereto; in (3) that the application for directions, which was adjourned to today, be adjourned to a date to be fixed by the Registrar; (4) that the costs of the first, third, fourth, and fifth respondents of today's hearing be their costs in the proceedings, as against the applicants; (5) that the costs of the second respondent, in relation to the notice of motion heard today, be taxed and paid by the applicants. i certify that this and the 3 preceding pages are a true copy of the reasons for Judgment herein of His Honour Mr, Justice Pincus 'Associate Dated 6 November (987 =A oe Po re ee eens a y