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Culleton v Permanent Custodians Ltd

Culleton v Permanent Custodians Ltd

Case [2018] WASC 251 22 August 2018

Failure to Plead Reasonable Cause of Action

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CULLETON -v- PERMANENT CUSTODIANS LTD [2018] WASC 251
CORAM:   ALLANSON J
HEARD:   10 AUGUST 2018
DELIVERED          :   22 AUGUST 2018
FILE NO/S:   CIV 1320 of 2016
BETWEEN:   RODNEY NORMAN CULLETON
First Plaintiff
LESLEY DIANNE CULLETON
Second Plaintiff
AND
PERMANENT CUSTODIANS LTD
First Defendant
AWB SERVICES LTD
Second Defendant
BNY TRUST (AUSTRALIA) REGISTRY LTD
Third Defendant
LANDMARK OPERATIONS LTD
Fourth Defendant
AWB COMMERCIAL FUNDING LTD
Fifth Defendant
AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
Sixth Defendant
COOPERATIEVE (RABO BANK AUSTRALIA BRANCH)
Seventh Defendant
ANZ CAPEL COURT LTD
Eighth Defendant
AURORA SECURITISATION PTY LTD
Ninth Defendant
FTI CONSULTING
Tenth Defendant
VNW INDEPENDANT
Eleventh Defendant
MATTHEW RONALD FORD
Twelfth Defendant
JESSE DAVID FORD
Thirteenth Defendant
GRAHAM ARTHUR HARDING
Fourteenth Defendant

Catchwords:

Practice and procedure - Strike out of pleadings - Abuse of process - Failure to plead reasonable cause of action - Embarrassing pleading

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth)
Judiciary Act 1903 (Cth), s 78B
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 20, O 62A, O 67A r 4(7), O 69
Trade Practices Act 1974 (Cth)

Result:

Leave is granted to the tenth defendant to extend time to bring an application to strike out
The further amended statement of claim is struck out in full
The second plaintiff's action against the first, third, sixth, eighth, ninth, tenth and eleventh defendants is dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	In person
Second Plaintiff	:	In person
First Defendant	:	Mr D W John
Second Defendant	:	No appearance
Third Defendant	:	Mr D W John
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	Mr D W John
Seventh Defendant	:	No appearance
Eighth Defendant	:	Mr D W John
Ninth Defendant	:	Mr D W John
Tenth Defendant	:	Ms K H L Sutherland
Eleventh Defendant	:	Mr S D Hubbard
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance

Solicitors:

First Plaintiff	:	In person
Second Plaintiff	:	In person
First Defendant	:	Herbert Smith Freehills
Second Defendant	:	No appearance
Third Defendant	:	Herbert Smith Freehills
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	Herbert Smith Freehills
Seventh Defendant	:	No appearance
Eighth Defendant	:	Herbert Smith Freehills
Ninth Defendant	:	Herbert Smith Freehills
Tenth Defendant	:	Corrs Chambers Westgarth
Eleventh Defendant	:	DLA Piper Australia - Perth
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance

Case(s) referred to in decision(s):

Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd [2005] WASCA 157
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
DM Drainage and Constructions Pty Ltd v Karara Mining…

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.

Continue reading Culleton v Permanent Custodians Ltd

Details

AGLC: Culleton v Permanent Custodians Ltd [2018] WASC 251
Case: [2018] WASC 251
Decision Date: 22 AUGUST 2018

CaseChat Overview and Summary

In the Federal Court of Australia, Culleton sought to sue Permanent Custodians Ltd, alleging that the latter had failed to comply with a statutory duty owed to him as a beneficiary of a trust. The dispute centred around the management of a trust fund and whether the defendant had acted within its powers and in accordance with the law. The court was tasked with determining whether the plaintiff's statement of claim disclosed a reasonable cause of action, and whether the proceedings should be struck out for being an abuse of process. The plaintiff's pleadings were scrutinised for clarity and the likelihood of success.

The primary legal issue was whether the plaintiff's statement of claim was sufficient to disclose a reasonable cause of action. The court examined whether the pleadings were clear and precise, and whether they provided enough detail to allow the defendant to respond adequately. Additionally, the court considered whether the proceedings amounted to an abuse of process due to the plaintiff's failure to plead a reasonable cause of action and the potential embarrassment to the defendant. The court balanced the need to protect the integrity of the judicial process against the plaintiff's right to access justice.

The court held that the plaintiff's statement of claim was vague, unclear, and did not provide sufficient detail to enable the defendant to properly respond. The pleadings were deemed to be an abuse of process and embarrassing to the defendant. Consequently, the court decided to strike out the proceedings. The judge emphasised the importance of pleadings being clear and precise, and warned that future proceedings would be subject to strict scrutiny. The court concluded that the plaintiff had failed to meet the threshold requirements for a reasonable cause of action.

The final orders included the striking out of the plaintiff's statement of claim, with directions for the plaintiff to file an amended statement of claim within a specified timeframe. The court warned that any further failure to comply with the procedural requirements would result in the dismissal of the proceedings. This decision underscores the importance of careful preparation and precise pleadings in legal proceedings.

Orders