Byrne v Cooke - [2010] QSC 76

SUPREME COURT OF QUEENSLAND

CITATION:

Byrne v Cooke & others [2010] QSC 76

PARTIES:

JOAN ELIZABETH BYRNE
(plaintiff)
v
PETER ELLIS COOKE
(first defendant)
and
PLANWEALTH PTY LIMITED
ACN 010 035 560
(second defendant)
and
HILLROSS FINANCIAL SERVICES LIMITED
ACN 003 323 055
(third defendant)

FILE NO:

BS 10335 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

19 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

18 January 2010

JUDGE:

Daubney J

ORDERS:

1. The application is refused.

2. Costs reserved.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM -
where plaintiff is the widow and executrix of the estate of the deceased – where plaintiff alleges that the defendant advised the deceased to make certain investments and enter into certain loan agreements – where it is alleged that the defendant made a number of misrepresentations and that acting on in reliance on these misrepresentations, the deceased entered into certain transactions – where it is alleged that this conduct constitutes misleading and deceptive conduct under the ASIC Act or alternatively the Trade Practices Act – where the relevant provisions of these Acts require ‘conduct by’ the defendants causing loss or damage to the plaintiff - where the defendants have applied under the Rules for an order that the amended statement of claim be struck out as disclosing no reasonable cause of action – where this application is made on the basis that the act which gave rise to the loss is the defendants misrepresentation and that the deceased, not the plaintiff, acted in reliance on the misrepresentation – where the defendants contend that the causal link between the conduct of the defendants and the loss suffered by the plaintiff does not survive in the pleaded case – whether the statement of claim should be struck out on the basis that it discloses no reasonable cause of action

Australian Securities and Investments Commission Act 2001 (Cth), s12DA, s 12GM
Trade Practices Act 1974 (Cth), s 52, s 87
Uniform Civil Procedure Rules 1999 (Qld), r 171

Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) (2006) 67 NSWLR 341, applied
Chappel v Hart (1998) 195 CLR 232, cited
Dey v Victorian Railway Commissioner (1949) 78 CLR 62, cited
Digi-Tech (Australia) Ltd v Brand [2004] NSWCA 58, cited
Ford Motor Company of Australia Limited v Arrowcrest Group Pty Ltd [2003] FCAFC 313, cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, cited
Henville v Walker (2001) 206 CLR 459, cited
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206, applied
Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526, applied
Marks v GIO (1998) 196 CLR 494, cited
Travel Compensation Fund v Tambree (2005) 224 CLR 627, cited
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514,…

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: [2010] QSC 76
Decision Date: 19 March 2010

CaseChat Overview and Summary

In Byrne v Cooke, the plaintiff, as the widow and executrix of the deceased's estate, initiated legal proceedings against the defendant, alleging that the defendant had provided misleading advice regarding certain investments and loan agreements. The plaintiff claimed that the defendant's misrepresentations led the deceased to enter into transactions that resulted in loss. The plaintiff argued that the defendant's actions constituted misleading and deceptive conduct under the ASIC Act or the Trade Practices Act. The defendants sought an order to strike out the amended statement of claim, asserting that the causal link between their conduct and the plaintiff's loss was insufficiently established, as the deceased, not the plaintiff, acted on the misrepresentations.

The court was required to determine whether the plaintiff's amended statement of claim sufficiently disclosed a reasonable cause of action. The defendants contended that the act which caused the loss was the deceased's reliance on the misrepresentations, and not the defendant's conduct itself. The court examined whether the causal link survived in the pleaded case and whether the plaintiff's claim was valid under the statutory provisions, which require 'conduct by' the defendants to cause loss or damage.

The court concluded that the amended statement of claim sufficiently disclosed a reasonable cause of action. The court found that the statutory provisions did not require the loss or damage to be caused by the conduct of the person who suffered the loss. The court held that the plaintiff's claim was valid, as the defendants' conduct was the cause of the deceased's actions, which in turn led to the loss suffered by the plaintiff. Therefore, the application to strike out the amended statement of claim was refused.

The court reserved costs, leaving the issue of costs to be determined at a later stage. This decision ensured that the plaintiff's claim could proceed, preserving the opportunity for the plaintiff to seek redress for the alleged misleading and deceptive conduct by the defendants.

Orders

Orders of the court

1. The application is refused.

2. Costs reserved.

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

Full text does not contain this section.

CITATION:	Byrne v Cooke & others [2010] QSC 76
PARTIES:	JOAN ELIZABETH BYRNE (plaintiff) v PETER ELLIS COOKE (first defendant) and PLANWEALTH PTY LIMITED ACN 010 035 560 (second defendant) and HILLROSS FINANCIAL SERVICES LIMITED ACN 003 323 055 (third defendant)
FILE NO:	BS 10335 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	19 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	18 January 2010
JUDGE:	Daubney J
ORDERS:	1. The application is refused. 2. Costs reserved.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM - where plaintiff is the widow and executrix of the estate of the deceased – where plaintiff alleges that the defendant advised the deceased to make certain investments and enter into certain loan agreements – where it is alleged that the defendant made a number of misrepresentations and that acting on in reliance on these misrepresentations, the deceased entered into certain transactions – where it is alleged that this conduct constitutes misleading and deceptive conduct under the ASIC Act or alternatively the Trade Practices Act – where the relevant provisions of these Acts require ‘conduct by’ the defendants causing loss or damage to the plaintiff - where the defendants have applied under the Rules for an order that the amended statement of claim be struck out as disclosing no reasonable cause of action – where this application is made on the basis that the act which gave rise to the loss is the defendants misrepresentation and that the deceased, not the plaintiff, acted in reliance on the misrepresentation – where the defendants contend that the causal link between the conduct of the defendants and the loss suffered by the plaintiff does not survive in the pleaded case – whether the statement of claim should be struck out on the basis that it discloses no reasonable cause of action Australian Securities and Investments Commission Act 2001 (Cth), s12DA, s 12GM Trade Practices Act 1974 (Cth), s 52, s 87 Uniform Civil Procedure Rules 1999 (Qld), r 171 Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) (2006) 67 NSWLR 341, applied Chappel v Hart (1998) 195 CLR 232, cited Dey v Victorian Railway Commissioner (1949) 78 CLR 62, cited Digi-Tech (Australia) Ltd v Brand [2004] NSWCA 58, cited Ford Motor Company of Australia Limited v Arrowcrest Group Pty Ltd [2003] FCAFC 313, cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, cited Henville v Walker (2001) 206 CLR 459, cited Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206, applied Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526, applied Marks v GIO (1998) 196 CLR 494, cited Travel Compensation Fund v Tambree (2005) 224 CLR 627, cited Wardley Australia Ltd v Western Australia (1992) 175 CLR 514,…