Dennis v Chambers Investment Planners Pty Ltd (No 2)
[2012] FCA 780
•20 July 2012
FEDERAL COURT OF AUSTRALIA
Dennis v Chambers Investment Planners Pty Ltd (No 2) [2012] FCA 780
Citation: Dennis v Chambers Investment Planners Pty Ltd (No 2) [2012] FCA 780 Parties: JOHN STRICKLAND DENNIS v CHAMBERS INVESTMENT PLANNERS PTY LTD (ACN 009 294 606) and GEORGE KAMEL TAKLA File number: WAD 292 of 2010 Judge: BARKER J Date of judgment: 20 July 2012 Catchwords: PRACTICE AND PROCEDURE – leave to amend statement of claim – particulars Legislation: Federal Court Rules 2011 (Cth) R 16.44(1) Date of hearing: 28 June 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: Mr C Slater Solicitor for the Applicant: Kott Gunning Counsel for the Respondents: Mr J Ludlow Solicitor for the Respondents: Downings Legal
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 292 of 2010
BETWEEN: JOHN STRICKLAND DENNIS
ApplicantAND: CHAMBERS INVESTMENT PLANNERS PTY LTD (ACN 009 294 606)
First RespondentGEORGE KAMEL TAKLA
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
20 JULY 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicant have leave to amend his statement of claim in terms of the minute of proposed further amended statement of claim dated 13 June 2012.
2.The minute of proposed further amended statement of claim dated 13 June 2012 stand as the amended statement of claim and service of it be dispensed with.
3.The applicant pay the respondents costs if any thrown away by reason of the amendment.
4.The respondents pay the applicant’s costs of the applicant’s interlocutory application for leave to further amend the statement of claim filed 13 June 2012 and in opposition to the demand for further particulars to be taxed if not agreed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 292 of 2010
BETWEEN: JOHN STRICKLAND DENNIS
ApplicantAND: CHAMBERS INVESTMENT PLANNERS PTY LTD (ACN 009 294 606)
First RespondentGEORGE KAMEL TAKLA
Second Respondent
JUDGE:
BARKER J
DATE:
20 JULY 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
The applicant has applied for leave to amend his statement of claim in the terms of a minute of proposed further amended statement of claim, which application is opposed by the respondents.
The proceeding, which might be referred to as a “failed investment claim”, has been the subject of a number of interlocutory applications to this point, including with respect to discovery.
The respondents consider that the proposed further amended statement of claim fails to provide adequate particulars in a number of respects and that until supplied leave to file the proposed amended pleading should be refused.
The respondents draw attention firstly to the loss and damage alleged in para 24 of the statement of claim, pointing out that some alleged actionable breaches in contract and tort apparently occurred as long ago as 1999 and so some alleged causes of action would be statute barred. The respondents say this brings into issue the date on which the applicant’s alleged loss and damage first arose so far as the claimed investment losses are concerned.
The respondents say the allegations the applicant makes as to the earliest date on which each separate head of loss or damage occurred is likely to have a material effect on the scope of evidence, including expert evidence, to be led by the respondents at trial.
Paragraph 24, in particular (ii), is identified as a pleading that implies the applicant acquired investments which were either worthless or illiquid but does not put in issue the date upon which the alleged loss arose, nor allege any reason for the alleged loss other than the fact that the applicant entered into the investment.
The respondents say it is open to them to construe the proposed pleading as giving rise to the limitation defence and the dates of alleged loss should therefore be pleaded.
The respondents also draw attention to the Federal Court Rules 2011 (Cth) (Rules) which by R 16.44(1) require that a party who claims damages that includes money that the party has paid or is liable to pay “must state in a pleading the amount of the money paid or liable to be paid”. The respondents say this has not been done here. All that para 24(i) for example does is state a material fact that the applicant became liable for and indebted to financiers for unspecified amounts exceeding his ability to pay in his financial circumstances from time‑to‑time.
The respondents say that although the proposed pleading would include annexures A to E, they too do not adequately particularise the amount the applicant alleges he paid or is now liable to pay by reason of the breaches alleged.
Put shortly, counsel for the applicant says that the issues identified by the respondents may be the subject of their defence, particularly the claim that some causes of action may be statute barred. If this is done, then counsel for the applicant says the applicant will be forced to plead in reply precisely from what date loss or damage may be claimed – assuming that there is substance in the foreshadowed pleading that some claims may be statute barred.
For my part, I find the current pleading and the proposed amended pleading to be reasonably complicated and to require careful reading in order to understand precisely what propositions are being pleaded. This is particularly so in relation to the function the proposed annexures A to E play in the pleading. At the interlocutory hearing I was taken through some of those annexures in order to explain their relationship to the pleaded loss and damage, in particular.
In the event I am satisfied that there has been sufficient particularisation of the claimed loss and damage pleaded, at least sufficient to enable the respondents at this point to plead by way of defence to the claims made against them.
So far as the foreshadowed limitation defences are concerned, I consider it more appropriate that the applicant be required to plead to any such defences once pleaded, rather than attempt to anticipate the respondents’ pleading in advance. It is recognised on behalf of the applicant that it might well become necessary for it to become quite particular in any reply as to the time and amount of loss and damage claimed in respect of particular alleged failed investments.
The respondents in the course of correspondence with the applicant, through solicitors, informally requested further and better particulars of the proposed amended pleading. In the event only some of those remained in contest.
In relation to paras 2 and 3, the respondents have required particulars as to the applicant’s employment with his employer at the time included, but not limited to fringe benefits which may not be reflected in any income or taxable income schedules as well as particulars of any additional financial or other benefits paid including retained profits through his private company.
In my view this is not a pleading point sufficient to either lead to a refusal of leave to amend or to an order requiring the provision of such particulars. Discovery of documents or evidence in due course will resolve the apparent concerns of the respondents in this regard.
In any event, a range of particulars concerning income earned, tax paid and income tax refunds received as alleged in para 2 of the proposed amended pleading are sufficiently provided in proposed annexure A.
The next contested request for particulars is in respect of para 13 of the proposed amended pleading. The amendment includes particulars for advice as to the Mill Point Road, South Perth property. The respondents require information about each and every oral communication that took place in respect of the advice alleged to have been given by email dated 5 December 2007.
In my view, properly construed the pleading is sufficiently clear. Annexure B when read with para 13, in my view, provides sufficient particulars. There is no basis either for refusing leave to amend or for ordering the provisions of further particulars in respect of para 13. In any event, the position will become clearer as the matter proceeds towards trial.
The next paragraph in contest is para 17. The respondents while satisfied with some further particulars they have received assert that the applicant needs to explain why he is alleging that merely presenting completed documents for signature amounts to a representation that the information used to fill in the spaces was unerringly accurate and therefore did not need to be checked. In my view the debate about the construction of the pleading in para 17 is semantical and does not require further particularisation. Annexure C in my view provides sufficient particulars, sufficient at least to enable the respondents to plead to the proposed amended pleading. I do not consider that further particulars are required in any event.
The next paragraph in contention is para 19. Attention is drawn to particulars as to the advice generally, as pleaded. The respondents point out that in this part of the pleading, two categories of conduct are alleged: first, that the respondents failed to consider certain issues; and secondly, that the respondents failed to advise the applicant as to shortcomings of investments recommended. The respondents say that nothing is pleaded about the advice that should have been given as to the most suitable financial investments.
The respondents find troublesome the plea in para 19(l) that pleads the respondents breached relevant duties or contract by failing to provide financial services advice “as to the most suitable financial investments”. It is by reference to the use of the expression “most suitable” that the respondents submit that the applicant has thereby obliged itself to say what the particular suitable investments were that should have been recommended.
For my part, I do not read the pleading in the way contended for on behalf of the respondents. In my view, properly construed, and as submitted by counsel for the applicant, the applicant is simply alleging that the respondents failed to provide financial services advice as to suitable financial investments, taking into account the circumstances of the applicant as they understood it.
The applicants have made it clear that they do not intend to lead evidence as to what investments the respondents should have or might have otherwise put the applicant into. They are simply alleging that the advice they received as to investments was not suitable in the circumstances.
In my view the proposed amended pleading is not deficient on account of this perceived deficiency and I do not consider that it is necessary for the applicant to provide further particulars on this account.
The next paragraph in contention is para 22(a) where the applicant pleads that in providing advice the respondents did not determine the applicant’s “relevant personal circumstances” in relation to giving the advice. The respondents say that it is not just “personal circumstances” it is “relevant personal circumstances” that are pleaded and these should be particularised.
I do not accept the complaint made. Taking the pleading as a whole it is clear that the applicant is simply pleading that his circumstances as disclosed to the respondents, and as previously pleaded and particularised, were not regarded when the respondents formulated the advice they gave the applicant. I would not refuse leave to file the proposed amended pleading or require the provision of further particulars on this account.
In these circumstances I am not satisfied that there is sufficient reason to withhold leave to file the amended pleading or to require the provision of further particulars of the proposed amended pleading as requested by the respondents.
While, as I have mentioned earlier, there is some difficulty in correlating some of the matters as pleaded particularly with the annexures A to E, I am satisfied that this proceeding can proceed adequately in accordance with the Rules on the basis of the proposed amended pleading.
In these circumstances, I will allow the amendment of the statement of claim as proposed with the usual consequential orders.
At the next directions hearing on 7 August 2012, I will review the programming orders that were made on 12 June 2012 concerning the filing of expert evidence on behalf of the respondents.
The Court therefore orders that:
1.The applicant have leave to amend his statement of claim in terms of the minute of proposed further amended statement of claim dated 13 June 2012.
2.The minute of proposed further amended statement of claim dated 13 June 2012 stand as the amended statement of claim and service of it be dispensed with.
3.The applicant pay the respondents costs if any thrown away by reason of the amendment.
4.The respondents pay the applicant’s costs of the applicant’s interlocutory application for leave to further amend the statement of claim filed 13 June 2012 and in opposition to the demand for further particulars to be taxed if not agreed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 20 July 2012
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