Capital Options (Aust) Pty Ltd v Hodges - [2020] QDC 67

DISTRICT COURT OF QUEENSLAND

CITATION:

Capital Options (Aust) Pty Ltd & Anor v Hodges & Ors [2020] QDC 67

PARTIES:

CAPITAL OPTIONS (AUST) PTY LTD AS ASSIGNEE FROM JOHN WILLIAM BOE AND ROBYN BOE AND BOE AUSTRALIA PTY LTD AS TRUSTEE OF THE BOE SUPERANNUATINO FUND
(First plaintiff)

and

JOHN WILLIAM BOE AND ROBYN BOE AND BOE AUSTRALIA PTY LTD AS TRUSTEE FOR THE BOE SUPERANNUATION FUND
(Second plaintiff)

V

NEIL HODGES
(First defendant)

and

GREG MARTOO
(Second defendant)

and

MARIO BABIC

(Third defendant)
and

AMP FINANCIAL PLANNING PTY LTD
(Fourth defendant)

FILE NO/S:

D74/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

27 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2020

JUDGE:

Kent QC DCJ

ORDER:

1. Summary judgment is given in favour of the Fourth Defendant against the First Plaintiff pursuant to rule 293 of the Uniform Civil Procedure Rules.

2. The claim to “the sum of $500,000” made by the Second Plaintiff including in the prayer for relief in the Third Further Amended Statement of Claim is struck out pursuant to r 171 of the Uniform Civil Procedure Rules without leave to re-plead.

3.   The Second Plaintiff’s claim generally against the Fourth Defendant is struck out, without leave to re-plead.

4.   The Second Plaintiff’s allegations of unconscionable conduct, fraud and misleading and deceptive conduct against the Fourth Defendant are struck out, without leave to re-plead.

5.   The result is that the following paragraphs of the Third Further Amended Statement of Claim are struck out so far as relates to the Fourth Defendant, subject to any further submissions as to perfection of these orders: 6(f), 11, 12, 13, 16(b), 18 to 21, 33A, 33B, 34-39, and paragraph (a) of the prayer for relief.

6.   The Plaintiffs to pay the Fourth Defendant’s costs

CATCHWORDS:

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT - where the plaintiffs allege that the defendants engaged in misleading or deceptive conduct, unconscionable conduct and fraud - where the second plaintiff assigned their chose in action to the first plaintiff - whether the chose in action was capable of assignment - whether the alleged chose in action was constituted by personal and unassignable statutory claims and/or a bare right to litigate - whether the assignee’s claim for damages had any real prospect of success.

PERSONAL PROPERTY - TRANSFER - CHOSE IN ACTION - ASSIGNMENTS GENERALLY - WHAT MAY BE ASSIGNED - DAMAGES CLAIMS AND OTHER CAUSES OF ACTION - where the plaintiffs allege that the defendants engaged in misleading or deceptive conduct, unconscionable conduct and fraud - where the second plaintiff assigned their chose in action to the first plaintiff - whether the non-statutory causes of action constituted a bare right to litigate - whether statutory causes of action can only be recovered by the person who suffered the loss - whether the plaintiff had sufficient interest to justify the assignment.

PROCEDURE – CIVIL…

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: [2020] QDC 67
Decision Date: 27 April 2020

CaseChat Overview and Summary

In the matter of Capital Options (Aust) Pty Ltd and another v Hodges and others, the court was required to determine whether the plaintiffs had established a reasonable cause of action against the defendants. The plaintiffs, Capital Options (Aust) Pty Ltd and another, alleged that the defendants engaged in misleading or deceptive conduct, unconscionable conduct and fraud. The plaintiffs claimed that the defendants' misrepresentations induced them to enter into a transaction and sought damages of $500,000, representing the expected return on their investment. However, the plaintiffs' claims were challenged on the basis that they failed to disclose any material facts to support their allegations.

The court found that the plaintiffs' claims lacked a proper basis in law and fact. The plaintiffs' claim for $500,000 in damages was not supported by any material facts, and their allegations of unconscionable conduct, fraud, and misleading or deceptive conduct were not properly particularised. Additionally, the plaintiffs' allegation that the fourth defendant was vicariously liable for the acts and conduct of the third defendant, a licensed financial adviser, was not supported by any material facts. The court found that the plaintiffs' pleadings disclosed no reasonable cause of action against the defendants.

Accordingly, the court granted summary judgment in favour of the fourth defendant, striking out the plaintiffs' claims against them without leave to re-plead. The court also struck out the plaintiffs' claim for $500,000 in damages, as well as their allegations of unconscionable conduct, fraud, and misleading or deceptive conduct. The court ordered the plaintiffs to pay the fourth defendant's costs. The plaintiffs' claims against the other defendants were not before the court in this decision.

Orders

Orders of the court

1. Summary judgment is given in favour of the Fourth Defendant against the First Plaintiff pursuant to rule 293 of the Uniform Civil Procedure Rules.

2. The claim to “the sum of $500,000” made by the Second Plaintiff including in the prayer for relief in the Third Further Amended Statement of Claim is struck out pursuant to r 171 of the Uniform Civil Procedure Rules without leave to re-plead.

3. The Second Plaintiff’s claim generally against the Fourth Defendant is struck out, without leave to re-plead.

4. The Second Plaintiff’s allegations of unconscionable conduct, fraud and misleading and deceptive conduct against the Fourth Defendant are struck out, without leave to re-plead.

5. The result is that the following paragraphs of the Third Further Amended Statement of Claim are struck out so far as relates to the Fourth Defendant, subject to any further submissions as to perfection of these orders: 6(f), 11, 12, 13, 16(b), 18 to 21, 33A, 33B, 34-39, and paragraph (a) of the prayer for relief.

6. The Plaintiffs to pay the Fourth Defendant’s costs

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:	Capital Options (Aust) Pty Ltd & Anor v Hodges & Ors [2020] QDC 67
PARTIES:	CAPITAL OPTIONS (AUST) PTY LTD AS ASSIGNEE FROM JOHN WILLIAM BOE AND ROBYN BOE AND BOE AUSTRALIA PTY LTD AS TRUSTEE OF THE BOE SUPERANNUATINO FUND (First plaintiff) and JOHN WILLIAM BOE AND ROBYN BOE AND BOE AUSTRALIA PTY LTD AS TRUSTEE FOR THE BOE SUPERANNUATION FUND (Second plaintiff) V NEIL HODGES (First defendant) and GREG MARTOO (Second defendant) and MARIO BABIC (Third defendant) and AMP FINANCIAL PLANNING PTY LTD (Fourth defendant)
FILE NO/S:	D74/18
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	27 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	27 March 2020
JUDGE:	Kent QC DCJ
ORDER:	1. Summary judgment is given in favour of the Fourth Defendant against the First Plaintiff pursuant to rule 293 of the Uniform Civil Procedure Rules. 2. The claim to “the sum of $500,000” made by the Second Plaintiff including in the prayer for relief in the Third Further Amended Statement of Claim is struck out pursuant to r 171 of the Uniform Civil Procedure Rules without leave to re-plead. 3. The Second Plaintiff’s claim generally against the Fourth Defendant is struck out, without leave to re-plead. 4. The Second Plaintiff’s allegations of unconscionable conduct, fraud and misleading and deceptive conduct against the Fourth Defendant are struck out, without leave to re-plead. 5. The result is that the following paragraphs of the Third Further Amended Statement of Claim are struck out so far as relates to the Fourth Defendant, subject to any further submissions as to perfection of these orders: 6(f), 11, 12, 13, 16(b), 18 to 21, 33A, 33B, 34-39, and paragraph (a) of the prayer for relief. 6. The Plaintiffs to pay the Fourth Defendant’s costs
CATCHWORDS:	PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT - where the plaintiffs allege that the defendants engaged in misleading or deceptive conduct, unconscionable conduct and fraud - where the second plaintiff assigned their chose in action to the first plaintiff - whether the chose in action was capable of assignment - whether the alleged chose in action was constituted by personal and unassignable statutory claims and/or a bare right to litigate - whether the assignee’s claim for damages had any real prospect of success. PERSONAL PROPERTY - TRANSFER - CHOSE IN ACTION - ASSIGNMENTS GENERALLY - WHAT MAY BE ASSIGNED - DAMAGES CLAIMS AND OTHER CAUSES OF ACTION - where the plaintiffs allege that the defendants engaged in misleading or deceptive conduct, unconscionable conduct and fraud - where the second plaintiff assigned their chose in action to the first plaintiff - whether the non-statutory causes of action constituted a bare right to litigate - whether statutory causes of action can only be recovered by the person who suffered the loss - whether the plaintiff had sufficient interest to justify the assignment. PROCEDURE – CIVIL…