KTC v David (Summary Dismissal)

[2020] FCA 1012

FEDERAL COURT OF AUSTRALIA

KTC v David (Summary Dismissal) [2020] FCA 1012

File number:

NSD 555 of 2019

Judge:

PERRAM J

Date of judgment:

17 July 2020

Catchwords:

PRACTICE AND PROCEDURE – application for leave to file and serve further amended statement of claim – where proposed pleading is third attempt against Fourth and Fifth Defendants – where allegations made that Fourth and Fifth Defendants liable under second limb of Barnes v Addy (1874) LR 9 Ch App 244 – whether pleadings sufficiently allege dishonest and fraudulent designs – whether pleadings sufficiently allege knowledge of Fourth and Fifth Defendants – where Fourth and Fifth Defendants challenge pleading of underlying fiduciary duties – where Fourth and Fifth Defendants oppose granting leave to replead

Legislation:

Federal Court Rules 2011 (Cth) r 16.02(1)(d)

Cases cited:

KTC v David (Pleadings) [2019] FCA 1566

KTC v Singh [2018] NSWSC 1510

Date of hearing:

20 December 2019

Date of last submissions:

12 February 2020 (Plaintiff)

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

43

Counsel for the Plaintiff:

Mr P Collinson QC with Ms M Loughnan QC

Solicitor for the Plaintiff:

HWL Ebsworth Lawyers

Counsel for the First Defendant:

Mr J A Hogan-Doran

Solicitor for the First Defendant:

Aitken Lawyers

Counsel for the Second and Third Defendants:

Mr R A Jedrzejczyk

Solicitor for Second and Third Defendants:

Ashurst Australia

Counsel for the Fourth and Fifth Defendants:

Mr A J L Bannon SC with Mr G E S Ng

Solicitor for Fourth and Fifth Defendants:

YPOL Lawyers

ORDERS

NSD 555 of 2019

BETWEEN:

KTC

Plaintiff

AND:

RODRIC DAVID

First Defendant

NAVEEN DAVID SINGH

Second Defendant

XALT PTY LTD ACN 147 571 033 (and others named in the Schedule)

Third Defendant

JUDGE:	PERRAM J
DATE OF ORDER:	17 JULY 2020

THE COURT ORDERS THAT:

1.The Plaintiff’s interlocutory application of 5 November 2019 be dismissed.

2.The Plaintiff pay the Fourth and Fifth Defendants’ costs as taxed, agreed or assessed.

3.The proceeding against the Fourth and Fifth Defendants be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1. The Plaintiff applies for leave to file a further amended statement of claim.  The proposed further amended statement of claim was Exhibit 1 on the application.  On 24 September 2019 I dismissed an earlier application by the Plaintiff to file a further amended statement of claim on the basis that the proposed pleading was not adequate.  Since there appeared to me that there might be a case secreted somewhere inside the earlier pleading I granted the Plaintiff a further opportunity to put the pleading in order.  The present application is the result of that attempt.

2. The background to the case appears in the earlier judgment and need not be repeated here: KTC v David (Pleadings) [2019] FCA 1566 (‘First Reasons’). These reasons assume a working familiarity with the First Reasons. A description of…