Hartley v Touyz - [2005] WASC 54

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HARTLEY -v- TOUYZ & ORS [2005] WASC 54

CORAM: MASTER NEWNES

HEARD: 21 MARCH 2005

DELIVERED : 12 APRIL 2005

FILE NO/S: CIV 1135 of 2004

BETWEEN: KENNETH RAYMOND HARTLEY
Plaintiff
AND
COLIN TOUYZ
LIONEL MYER KING
HYMAN ISIDORE TOUYZ
Defendants
AND
BIRDANCO NOMINEES PTY LTD T/AS BIRD CAMERON
First Third Party
AND
LAURED WESLEY PARAED T/AS PRAED PUBLIC ACCOUNTANTS
Second Third Party
AND
JOHN SOUTHWARD HARTLEY
PHYLLIS MAY HARTLEY
Third Third Parties

Catchwords:

Practice and procedure - Application to strike out statement claim in third party proceedings - Whether discloses arguable cause of action - Whether outgoing trustee owes duty of care to warn incoming trustee as to potential effect on personal financial position of assuming office of trustee - Turns on own facts

Legislation:

Law Reform (Contributory Negligence and Joint Tortfeasors Contribution) Act 1947 (WA), s 7(1)(c)

Result:

Statement of claim in third party proceedings struck out

Category: B

Representation:

Counsel:

Plaintiff:     No appearance
Defendants:     Mr G J Pynt
First Third Party           :     No appearance
Second Third Party       :     No appearance
Third Third Parties        :     Mr E J Myers

Solicitors:

Plaintiff:     No appearance
Defendants:     Hammond King Touyz
First Third Party           :     No appearance
Second Third Party       :     No appearance
Third Third Parties        :     Edward John Myers

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

Cole v South Tweed Heads Rugby League Football Club (2004) 207 ALR 52
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 205 ALR 522

Case(s) also cited:

Armitage v Nurse [1997] 2 All ER 705
Australia & New Zealand Banking Group Ltd v Intagro Projects Pty Ltd [2004] NSWSC 1054
Mulleneux v Brennan [2002] WASC 43
Re; Manisty's Settlement [1973] 2 All ER 1203

MASTER NEWNES: In the third party proceedings the defendant has filed a single statement of claim, pleading claims against each of the first to third third parties. I have before me an application by the third third parties ("the Hartleys") to strike out the defendants' statement of claim in the third party proceedings, so far as it relates to them, and to dismiss the claim against them. In the meantime, the defendants have applied to amend the statement of claim and have filed a minute containing the proposed amendments. Although, in the absence of the other third parties, the amendments were not formally moved at the hearing of this application, it was agreed that the minute, so far as it related to the Hartleys, would be treated as the pleading of the defendants’ claim against them.
In the action the plaintiff alleges that the defendants, who are the partners in a firm of solicitors, were negligent in acting for him in relation to the affairs of a family trust. The claim arises in the following way. The plaintiff is the son of the Hartleys. By a Deed of Settlement dated 5 July 1977 a discretionary trust known as the "John Hartley Family Trust" (the "Trust") was established. Mr Hartley was…

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 Hartley v Touyz

Details

AGLC: Hartley v Touyz [2005] WASC 54
Case: [2005] WASC 54
Decision Date: 12 APRIL 2005

CaseChat Overview and Summary

The case of Hartley v Touyz involved the applicant, Hartley, who sought to strike out a statement claim filed by the respondent, Touyz, in third party proceedings. Touyz's claim sought damages for a statement made by Hartley that allegedly caused harm to Touyz's reputation. The dispute was heard in the Supreme Court of New South Wales.

The central legal issue was whether Touyz's claim disclosed an arguable cause of action. Specifically, the court had to determine if an outgoing trustee owes a duty of care to an incoming trustee, warning them about potential effects on their personal financial position when assuming office. The case hinged on whether such a duty existed and if Touyz's claim met the threshold for an arguable cause of action.

The court found that Touyz's statement claim did not disclose an arguable cause of action. It was determined that there was no duty of care owed by an outgoing trustee to an incoming trustee regarding the personal financial implications of assuming office. The court reasoned that such a duty would not be imposed under the circumstances presented, as the relationship between trustees and the trust itself was the primary concern, not the personal financial status of the incoming trustee. Therefore, the application to strike out the claim was successful.

The Supreme Court of New South Wales granted the application to strike out the statement claim, ruling that it did not disclose an arguable cause of action. The court's decision was based on the absence of a duty of care from an outgoing trustee to an incoming trustee concerning personal financial implications. This ruling clarified the scope of potential liabilities and responsibilities in the context of trustee transitions.

Orders