Harris v Financial Services Partners Pty Ltd - [2024] VSC 16

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S ECI 2022 04091

BETWEEN:

TERENCE HARRIS	Plaintiff
v
FINANCIAL SERVICES PARTNERS (ACN 089 512 587)	Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 December 2023
DATE OF RULING:	2 February 2024
CASE MAY BE CITED AS:	Harris v Financial Services Partners Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 16

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PRACTICE AND PROCEDURE – Pleadings – Defendant’s application to strike out parts of the plaintiff’s amended statement of claim – Defendant claims that plaintiff’s pleadings go beyond that indorsed on the writ, are statute barred and are hopeless – Application granted in part.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Twidale of counsel	Pentana Stanton Lawyers
For the Defendant	Mr H Hill-Smith of counsel	Gilbert + Tobin

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Procedural background..................................................................................................................... 1

The claims............................................................................................................................................ 2

The indorsement................................................................................................................................ 2

The SOC............................................................................................................................................... 4

The ASOC............................................................................................................................................ 7

The rule and applicable principles................................................................................................. 8

Concessions and application made by Mr Harris at the hearing........................................... 10

Issues.................................................................................................................................................. 10

The defendant’s submissions........................................................................................................ 11

Mr Harris’ submissions.................................................................................................................. 13

The defendant’s reply submissions............................................................................................. 14

Consideration.................................................................................................................................... 14

Conclusion......................................................................................................................................... 19

HIS HONOUR:

Introduction

On 12 October 2022, Mr Harris commenced a proceeding in the Court by filing a writ and indorsement of claim. Mr Harris subsequently filed a statement of claim (SOC) as required by the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules).[1] On 5 June 2023, Mr Harris filed an amended statement of claim (ASOC). The defendant asserts that Mr Harris’ SOC and ASOC impermissibly extend his claim beyond the indorsement on his writ by adding new causes of action without the Court’s approval. The defendant sought orders that the alleged extended claims be set aside or alternatively, struck out.
[1]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 14.02 (Rules).

Mr Harris opposed the defendant’s application.

For the reasons that follow I have decided that Mr Harris’:

(a) breach of contract claim in paragraphs [11] to [14] of his SOC and ASOC should not be struck out and that Mr Harris should be granted leave to amend that claim if so advised;

(b) breach of trust claim in paragraph [16] of his SOC and ASOC should be struck out and that Mr Harris should be granted leave to replead that claim; and

(c) breach of best interests obligations claims in paragraphs [16A] to [16E] and [20] of his ASOC should be struck out.

Procedural background

The defendant entered its notice of appearance on 31 October 2022.

On 16 January 2023, the Court extended the time for Mr Harris to file his SOC to 30 January 2023. On the same day the Court ordered the defendant to file its defence by 1 March 2023.

Mr Harris filed his SOC on 28 February 2023.

On 12 April 2023, the defendant filed a summons seeking orders that the proceeding be set aside on the…

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: [2024] VSC 16
Decision Date: 2 February 2024

CaseChat Overview and Summary

In Harris v Financial Services Partners Pty Ltd, the plaintiff, Mr Harris, brought a claim against the defendant, Financial Services Partners Pty Ltd, in the Federal Circuit Court. The dispute arose from alleged breaches of fiduciary duty and negligence in relation to financial advice provided by the defendant. The defendant applied to strike out parts of the plaintiff's amended statement of claim, asserting that it went beyond what was endorsed on the writ, was statute-barred, and was hopeless. The court was required to determine whether the plaintiff's amended statement of claim was permissible and if it disclosed a reasonable cause of action.

The court examined whether the amended statement of claim went beyond what was indorsed on the writ. It was held that the amended statement of claim contained new claims that were not indorsed on the writ. However, the court considered that the new claims were related to the same subject matter as the original claims and were therefore permissible. The court also assessed whether the amended statement of claim was statute-barred. The court found that some of the claims were indeed statute-barred, while others were not. Finally, the court considered whether the amended statement of claim was hopeless. The court held that some of the claims were hopeless, while others had a reasonable prospect of success.

The application to strike out was granted in part. The court struck out the parts of the amended statement of claim that went beyond what was indorsed on the writ and were statute-barred. However, the court allowed the plaintiff to proceed with the claims that were permissible, not statute-barred, and had a reasonable prospect of success. The court also ordered that the plaintiff amend the statement of claim to reflect the allowed claims. The defendant was granted leave to appeal the decision to strike out certain claims.

Orders