La Trobe Asset Management Australia Pty Limited v Hajar

[2009] NSWSC 1413

CITATION:	LA TROBE ASSET MANAGEMENT AUSTRALIA PTY LIMITED v HAJAR & ORS [2009] NSWSC 1413
HEARING DATE(S):	Wednesday 2 December 2009
JUDGMENT DATE :	16 December 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	The Notice of Motion filed on 2 September 2009 is dismissed. The sixth defendant is to pay the plaintiff’s costs of and incidental to the Notice of Motion.
CATCHWORDS:	PRACTICE AND PROCEDURE – review of Registrar’s decision to permit the filing of an amended statement of claim as against the sixth defendant, a solicitor – SUMMARY DISMISSAL – proceedings by plaintiff for damages arising from loan to third defendant made on false basis by third defendant, a client of sixth defendant – allegedly to pay sixth defendant’s legal costs in unrelated proceedings – whether cause of action under s.42, Fair Trading Act 1987 properly pleaded – elements of a cause of action under that section – whether arguable that a third party informed that application for loan was or would be made for an investment purpose when in fact the loan was sought to pay solicitor’s costs gives rise to a duty in the third party (the sixth defendant) to disclose to the lender the true purpose of the loan – the amended statement of claim adequately pleaded the cause of action under s.47, Fair Trading Act – applications for review and for dismissal of proceedings dismissed
LEGISLATION CITED:	Fair Trading Act 1987 Trade Practices Act 1974 (Cth)
CASES CITED:	Demagogue Pty Limited v Ramensky (1992) 39 FCR 31 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 Equity Access Pty Limited v Westpac Banking Corp (1989) 16 IPR 431 at 440 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Lee Gleeson Pty Limited v Sterling Estates (1991) 23 NSWLR 571 Metalcorp Recyclers Pty Limited v Metal Manufactures Limited [2003] NSWCA 213 Penthouse Publications Limited v McWilliam (NSW Court of Appeal, unreported, 14 March 1991, BC9102223) Tomko v Palasty (No 2) [2007] NSWCA 369 Yolarno Pty Limited v TransGlobal Capital Pty Limited (No 2) [2003] NSWSC 1004
PARTIES:	LA TROBE ASSET MANAGEMENT AUSTRALIA PTY LIMITED v Jalal HAJAR & ORS
FILE NUMBER(S):	SC No 12267 of 2006
COUNSEL:	P: R A Parsons 6D: R Lovas/D Currie
SOLICITORS:	P: Kells The Lawyers D: John Stonham & Co

OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

WEDNESDAY 16 DECEMBER 2009

No 12267 of 2006

LA TROBE ASSET MANAGEMENT OF AUSTRALIA PTY LIMITED v JALAL HAJAR & ORS

JUDGMENT

HIS HONOUR:

(1) INTRODUCTION

1 This is an application by way of notice of motion filed on 2 September 2009 by the sixth defendant.

2 The notice of motion is somewhat unusual in that it seeks orders, not only that the Registrar’s decision permitting an amendment to the Statement of Claim be discharged or set aside, but also that the Third Amended Statement of Claim (for convenience referred to in this judgment as “TASC”) be struck out.

3 The Registrar granted leave to the plaintiff to amend its statement of claim and to file and serve the TASC. The amended pleading was filed pursuant to leave on 11 August 2009.

4 The formal orders sought in the notice of motion are:-

(1) Pursuant to UCPR 49.19, the decision of Registrar Greenwood made on 6 August 2009 granting leave to the plaintiff to amend it statement of claim be discharged or otherwise set aside.

(2) The TASC, filed on 11 August 2009, be struck out.

(3) In substitution for Orders 1, 4 and 5 of the Orders made by Registrar Greenwood on 6 August 2009 an order that:-

(a) The plaintiff’s notice of motion filed on 6 August 2009 be dismissed with costs.


(4) Costs.

(2) Background

5 The proceedings were commenced by statement of claim filed on 16 May

2007. At that time, there were only two named defendants, Mr and Mrs

Hajar, the first and second defendants. By amended statement of claim

filed on 31 May 2007, the plaintiff joined five other defendants to the

proceedings, being:-

(1) Ahmed Itaoui (third defendant).

(2) CW Holdings Pty Limited (the fourth defendant).

(3) Richard Wells (the fifth defendant).

(4) Megan Dorrough trading as Dorrough Smart Solicitors and Attorneys (the sixth defendant).

(5) Fatme Itaoui (the seventh defendant).

6 Subsequent to that amendment, it was discovered that the third defendant was made bankrupt on 20 September 2006. The proceedings were accordingly stayed against the third defendant.

7 The sixth defendant filed a defence to the proceedings on 14 September 2007.

8 On 11 April 2008, a second amended statement of claim, amended only in respect to the matter of interest claimed against the seventh defendant, was filed.

9 On 26 June 2008, default judgment was entered into against the seventh defendant.

10 On 7 July 2008, a Court appointed mediation was held, and as a result of the mediation, the plaintiff settled the proceedings as against the fourth and fifth defendants. On 20 February 2009, the plaintiff in this respect filed a notice of discontinuance.

11 On 12 September 2008, the first and second defendants filed a cross-claim in the proceedings against:-

(1) La Trobe Asset Management of Australia Pty Limited (first cross-defendant).

(2) Richard Wells (second cross-defendant).

(3) RCW Holdings Pty Limited (third cross-defendant).

(4) Ahmed Itaoui (fourth cross-defendant).

(5) The Registrar General for the State of NSW (fifth cross-defendant).

12 One 5 June 2009, settlement was reached between the cross-claimants and the first, second and third cross-defendants. By orders entered on 5 June 2009 by Registrar Bradford, the proceedings as between the plaintiff and the first and second defendants were dismissed, and the cross-claim as between the cross-claimants and the first, second and third cross-defendants was dismissed.

13 Following the making of those orders, the remaining proceedings concern the plaintiff and the sixth defendant.

(3) The plaintiff’s claim against the sixth defendant as pleaded in the third amended statement of claim

14 The claim against the sixth defendant in the TASC is set out at paragraphs [68] to [99]. It is necessary to summarise the matters that relate to the causes of action pleaded against the sixth defendant.

15 Accordingly to the TASC, from 4 December 2002, Ms Dorrough, solicitor, acted for the third defendant, Mr Ahmed Itaoui, in respect of an investigation conducted by the Law Society of NSW. Arising from the investigation, Mr Itaoui was charged with nine counts of obtaining benefit by deception. Ms Dorrough acted for Mr Itaoui in defending those charges, and a single charge of attempting to obtain benefit by deception arising from his employment at Sensis in February 2005.

16 The case pleaded alleged that Ms Dorrough was aware that the allegations against Mr Itaoui included:-

(1) That he had obtained approximately $478,935 without proper authority from the trust account of a firm of solicitors whilst employed as a clerk and by using his position as a clerk.

(2) That he had attempted to obtain between $7000 - $8000 by directing funds to himself which were meant to be directed to a client of his then employer, Sensis.

17 The amended pleading also alleges that from February 2004, Ms Dorrough was aware that Mr Itaoui lacked the capacity to pay her legal fees. As a result, on 29 March 2005, she met with him to consider finance arrangements for the payment of the outstanding legal fees. A file note dated 29 March 2005, annexed to Mr Lewin's affidavit, was referred to as particulars. In April 2005, Ms Dorrough required Mr Itaoui pay her $100,000 for legal fees.

18 It was further alleged by the plaintiff that Ms Dorrough directed Mr Itaoui to a finance broker, Mr Wells, for the purpose of procuring an advance by which he could obtain funds to pay legal fees which he was liable to pay to her. Ms Dorrough allegedly knew that Mr Itaoui had arranged to obtain the proposed advance by procuring Jalal and Fadela Hajar, his then future father and mother-in-law, to borrow money by way of mortgage over their property at Lakemba.

19 It is alleged that Ms Dorrough procured instructions from Mr Itaoui to permit

Mr Wells to directly inform her of the progress of the proposed loan advance.

20 These instructions were said to be confirmed in a letter from Ms Dorrough

to Mr Wells dated 26 April 2005. Based on these instructions, Ms

Dorrough purportedly received reports, information and documents from Mr Wells pertaining to the application for the loan. File notes of telephone attendance from Mr Wells dated 19 April 2005 and 26 April 2005, a facsimile from Mr Wells to “Armad” [sic] enclosing pre-approval from the plaintiff dated 20 April 2005 and a file note of an interview with “client” dated 4 May 2005 were relied upon as particulars.

21 Central to the plaintiff's claim against Ms Dorrough is the proposition that the true purpose of the proposed advance was for Mr Itaoui to obtain funds so that he could pay her legal fees, and that she was aware of that fact. On the basis of information and documents provided to her by Mr Wells, it is alleged that Ms Dorrough knew that the plaintiff, as the nominated credit provider, acted upon the basis that the loan was represented as being made to Mr and Mrs Hajar for investment purposes.

22 Accordingly, it is alleged that Ms Dorrough was aware that representations had been, or were likely, to be made by the third defendant at Mrs Dorrough’s instigation to the plaintiff that the purpose of the loan was for “investment”, in circumstances where she knew that no such investment was to be made by Mr and Mrs Hajar. As a result, the plaintiff contended that Ms Dorrough came under a duty, or was under a duty, to disclose to the plaintiff, as the nominated credit provider, the real purpose of the proposed advance. Ms Dorrough, it is alleged, failed to make such disclosure. If the plaintiff had known of the real purpose of the proposed advance, the plaintiff’s contention is that it would not have advanced any amount.

23 Mr and Mrs Hajar maintained in their defence that the loan advance was obtained on the basis that Mr Itaoui misled them and fraudulently obtained the advance for his own purposes, in circumstances where the plaintiff is or may be precluded from recovering from the borrowers or from a realisation of the property.

24 The plaintiff claims that Ms Dorrough directed, or procured a direction to give to, the plaintiff that $100,000 of the proceeds of the loan advance be deposited to her trust account. An irrevocable authority to receive executed by Ahmed Itaoui dated 12 May 2005 was referred in this respect. The amount of $100,000 was allegedly received by Ms Dorrough by way of a bank cheque in accordance with the direction, as particularised in paragraph [89.1]. The plaintiff contended Ms Dorrough took and received the benefit of the sum of $100,000 to the use of the plaintiff.

25 In paying the amount of $100,000 to Ms Dorrough pursuant to the loan advance, the plaintiff claimed it was acting and operating under a mistake of fact, namely, that Mr and Mrs Hajar had genuinely made, authorised and accepted the loan, were genuinely borrowing the money and had genuinely instructed that $100,000 be paid to the trust account of Ms Dorrough.

26 Alternatively, the plaintiff claimed that the alleged conduct of Ms Dorrough occurred in trade or commerce and constituted misleading or deceptive conduct within the meaning of s.42 of the Fair Trading Act 1987. By Ms Dorrough’s conduct, the plaintiff alleged, it had suffered loss. The particulars of loss identified by the plaintiff were that it had lost the $100,000 paid to Ms Dorrough in addition to the interest it would be able to charge thereon but for having paid it out as pleaded.

(4) The issues

27 The written and oral submissions should be considered, firstly, in terms of the alleged claim of misleading and deceptive conduct as pleaded in the TASC and, secondly, in relation to miscellaneous pleading issues that have been raised.

(a) The misleading and deceptive conduct claim

28 The plaintiff, in its written submissions, stated that there are two causes of action pleaded in the TASC that are relied upon: an action for monies had and received and an action for misleading or deceptive conduct under s.42 of the Fair Trading Act.

(i) Contentions and factual matters

29 In the submissions for the sixth defendant in relation to the s.42 cause of action, the following points were emphasised:-

(1) The “conduct” pleaded against the sixth defendant appeared to be “conduct by omission” .

(2) The pleading of misleading and deceptive conduct is incomplete as to one element (see (3) and (4) below). Section 4(4) defines “conduct” as “an act or refusal to act” and refusing to do an act includes “a reference to refraining (otherwise than inadvertently) from doing the act” .

(3) There was a need not simply to plead a failure to do something but there must be an allegation that the sixth defendant refused to do the thing in question, that is, circumstances constituting a refusal or conduct by way of refraining from doing something.

(4) The allegation in paragraph 87 of the TASC, that the sixth defendant failed to make disclosure as to the real purpose of the loan, was said to be insufficient to properly plead misleading or deceptive conduct within the Fair Trading Act .

30 To support his submissions, in this respect, Mr Lovas of counsel for the sixth defendant referred to three authorities: Lee Gleeson Pty Limited v Sterling Estates (1991) 23 NSWLR 571; Metalcorp Recyclers Pty Limited v Metal Manufactures Limited [2003] NSWCA 213 and Yolarno Pty Limited v TransGlobal Capital Pty Limited (No 2) [2003] NSWSC 1004. I will refer to these authorities below.

31 The central submission made on behalf of the sixth defendant in the written submissions on her behalf in relation to the TASC was that it does not “tell the sixth defendant or the Court the particular case the sixth defendant will be required to meet” (paragraph [2]). The pleading, it was submitted, does not conform to the rules of proper pleading or to the requirements concerning the provision by a plaintiff of adequate particulars.

32 As indicated in the summary of the factual allegations made by the plaintiff against the sixth defendant set out above, it can be seen that the plaintiff essentially relies in support of its claim of misleading or deceptive conduct under s.42 upon the following matters:-

(1) That Mr Itaoui lacked the capacity to pay the sixth defendant’s legal costs incurred and to be incurred by him (paragraph [74]).

(2) The true purpose of the proposed advance from the plaintiff was to obtain funds from which the sixth defendant could be paid her legal costs (paragraph [83]).

(3) The sixth defendant had information and documents provided to her by Mr Wells which established that the plaintiff, as the nominated credit provider, was acting upon representations which constituted the bases for the loan to the effect that the loan was being made to Mr and Mrs Hajar for the purpose of investment (paragraph [84]).

(4) The sixth defendant was placed on notice that it had been, or was likely to be, represented to the plaintiff as stated in (3) above, in particular, that the purpose of the loan was for investment, in circumstances in which she knew that no such investment was proposed (paragraph [85]).

33 The sixth defendant submitted that it was unfair to require her to respond

to an allegation where the plaintiff has not clarified what type of knowledge is being alleged. The particulars of how, where and when the sixth defendant obtained this knowledge were not included.

34 The sixth defendant submitted that the plaintiff vexatiously pleaded all the facts alleged in paragraphs [68] - [94] in the TASC as material to the cause of action for misleading or deceptive conduct.

35 The plaintiff responded by submitting that the focus in paragraph [96] of the TASC in pleading misleading or deceptive conduct, is, necessarily on the conduct of the sixth defendant as pleaded in paragraphs [68] - [94]. This, it was said, is required by s.42 of the Fair Trading Act, which prohibits prescribed conduct.

(ii) Missing elements to the cause of action

36 In the written submissions for the sixth defendant, it was stated that a claim for breach of s.42 of the Fair Trading Act by omission required specific elements to be pleaded, which the plaintiff had failed to do. Section 4(4) of the Fair Trading Act was referred to in this respect as requiring the plaintiff to plead and particularise that the sixth defendant “refused” to do something.

37 The sixth defendant contended that the plaintiff failed to plead:-

(1) The misrepresentation which it alleges the sixth defendant's silence conveyed: Equity Access Pty Limited v Westpac Banking Corp (1989) 16 IPR 431 at 440 to 441; (1990) ATPR 40-994; Metalcorp (supra).

(2) How the plaintiff’s mistake of fact arose out of the sixth defendant's conduct: Equity Access (supra).

(iii) Consideration of the s.42 cause of action

38 In relation to the cause of action pleaded by the plaintiff against the second defendant in reliance upon the provisions of s.42 of the Fair Trading Act, it is, in my opinion, essential to have regard to the factual circumstances alleged in the TASC in the context of the relationship pleaded between the third and sixth defendants. Insofar as two persons may act in concert, it is, in my opinion, arguable that a misrepresentation made by one pursuant to an agreement, arrangement or understanding between them may be sufficient to make the other a party to the misrepresentation by the latter knowing it is, or will be, made and approving and/or adopting it.

39 Whether, on the facts of the present case, it can be said that the sixth defendant did participate in the making of the representation is not, of course, a matter that arises for determination on the present application. It is a matter that may be pursued as an issue at trial.

40 The plaintiff submitted that the allegations of knowledge in paragraphs [83]

and [84] of the TASC make it clear that the non-disclosure alleged against

the sixth defendant was not an inadvertent one.

41 In Metalcorp (supra), it was observed at [14] that a finding of misleading or deceptive conduct is open where conduct, by word or deed, conveys a misrepresentation. It was acknowledged in that case that a misrepresentation may arise in circumstances that include silence.

42 Reference was there made to the observations of Black CJ in Demagogue Pty Limited v Ramensky (1992) 39 FCR 31, 32 wherein it was stated:-

“… Although ‘mere silence’ is a convenient way of describing some fact situations, there is in truth no such thing as ‘mere silence’ because the significance of silence always falls to be considered in the context in which it occurs …”

43 In Metalcorp (supra), Handley JA observed at [15] that, in the absence of some positive duty to speak, silence can only be misleading or deceptive against a background of other facts known to both parties which make what is actually said so incomplete that it conveys a misrepresentation.

44 Similarly, in Yolarno (supra), Gzell J referred to the principles applicable to the operation of the provisions of s.52 of the Trade Practices Act 1974 (Cth) as stated by Hills J in Equity Access (supra). In that respect, the first principle was stated to be that, in order for impugned conduct to be misleading or deceptive, it must convey, in all the circumstances, a misrepresentation.

45 Secondly, it was observed that there was no contravention of s.52(1) of that Act unless error or misconception results from the conduct of the corporation and not from other circumstances for which the corporation is not responsible.

46 In relation to the present case, it was argued for the sixth defendant that there was no basis for the allegation of breach of duty in the context of s.42 of the Fair Trading Act. It is clear that, provided the necessary elements are established, a defendant may be subject to a duty consistent with the terms of the section. In Re Gleeson (supra), Brownie J at 580, in the circumstances of that case, addressed a similar point when his Honour stated:-

“It follows from what I have said that a vendor’s silence in circumstances where the common law would not impose on him a duty to speak may constitute conduct which is, or is likely to be, deceptive in terms of s.52(1).”

47 His Honour also stated in that case at 582:-

“There is no suggestion at all that the bank was guilty of any sharp practice, or anything like it, but for it to remain silent, in the circumstances where its instructions from its customer had changed, allowed the customer to successful engage in sharp practice against the builder … s.52 seems to me to have required the bank to disclose to the builder its changed circumstances …”

48 The allegations in the TASC, accordingly, as observed above, were that the sixth defendant, at all relevant times, acted in pursuit of her own financial interest in recovering costs from the third defendant by directing the third defendant to a finance broker (Richard Wells) for the purpose of obtaining a loan which would become the source of payment of her costs.

49 It is further alleged that the sixth defendant had actual knowledge:-

(1) That the third defendant would procure Mr and Mrs Hajar to borrow monies from the plaintiff (secured on their home).

(2) That the loan was being applied for the purpose of providing a fund from which payment of her costs would be made whilst she also knew that the plaintiff was acting on the basis that the loan was for investment purposes.

(3) That the sixth defendant was on notice that it had been, or alternatively was likely to have been, represented to the plaintiff that the advance was sought for investment purposes when it was not.

(4) That having that knowledge, the sixth defendant remained silent.

50 The allegations, accordingly, allege conduct by the sixth defendant conjointly or in co-operation with that of the third defendant all directed to a common purpose, namely, that the third defendant would secure loan funds for her benefit. The allegation, accordingly, made in the TASC is that the third and sixth defendants had entered into an agreement to achieve that end and that the sixth defendant had full knowledge of the matters identified above.

51 In the circumstances pleaded, accordingly, it would be artificial and wrong to treat the pleading as referring to the conduct of the third defendant as if it were a reference to the conduct of a person acting separately or alone independently of the sixth defendant.

52 The pleading, accordingly, alleges that a misrepresentation was made to that effect that the loan was being secured by Mr and Mrs Hajar for their own purposes which were said to be “investment purposes”, when it was not. On the pleading, the sixth defendant is alleged to have been involved in the alleged misrepresentation insofar as she knew of it in the course of the finance application which was, in reality, a means to an end, namely, to secure funds principally for that payment of the sixth defendant’s costs.

53 In the circumstances alleged and applying the principles to which reference has earlier been made, I consider that the TASC sufficiently pleads a cause of action under s.42 of the Fair Trading Act. The TASC, in other words, pleads facts that conform to the requirements for such a cause of action and provides sufficient particularity of the matters relied upon.

54 In particular, insofar as it is alleged that the third defendant acted at the behest of the sixth defendant and that the sixth defendant became aware that a misrepresentation was or would be made, the pleading sufficiently raises the issue of “conduct” within the meaning of s.4(b) of the Fair Trading Act. In that respect, it sufficiently conveys an allegation that the sixth defendant acted advertently in refraining from informing the plaintiff that the person who was allegedly, in fact, acting at her bequest, had misrepresented the purpose of the loan.

55 I, accordingly, consider that the application to strike out the cause of action pleaded under s.42 of the Fair Trading Act should be dismissed.

(iv) Miscellaneous pleading issues

56 I will deal separately with paragraph [92] and [93] which were the subject of particular attention in the submissions for the sixth defendant.

• Paragraph 92

57 This paragraph pleads the position taken in the proceedings by the first and second defendants, Mr and Mrs Hajar, in which they maintained that the third defendant misled them and fraudulently obtained the loan for his own purposes. Mr and Mrs Hajar also maintained that such conduct precluded the plaintiff from recovering from them or from realising their property.

58 There were two complaints made in the submissions for the sixth defendant. Firstly, there were said to be drafting problems with paragraph [92] – it was said to be “difficult to follow” and that it concerned “other people’s conduct and is therefore misplaced”. Criticism was also directed to the phrase “at all material times” and to the word “maintained” (in the context as to how and when Mr and Mrs Hajar maintained their position). There was said to be a lack of particulars in relation to such matters.

59 The second problem, said to be a highly problematic one, was the use of the word “and” in the paragraph. There is no need, however, to further analyse this aspect of the matter. In my view, no uncertainty arises nor any inconsistency as was claimed in the submissions. Whether or not the first and second defendants relied on the allegation of having been misled or of the third defendant fraudulently obtaining the advance, the allegation is clearly directed to the proposition that, so far as the plaintiff’s claim against the sixth defendant is concerned, the plaintiff is effectively prevented from enforcing its rights against the first and second defendants. This is relied upon as a basis for the damage alleged to be causally related to the conduct of the sixth defendant.

• Paragraph 93

60 Paragraph 93 pleads that the plaintiff acted on a mistake of fact in paying $100,000 to the sixth defendant, in that it acted on the basis of a belief that the first and second defendants had genuinely made the loan application.

61 The argument in the submissions on the present application was that it related to “other people” and that there was ambiguity in the word “genuinely”. The repeated use of the word “genuinely” was said to be vexatious as it could mean that the first and second defendants “did not do the things described or it could mean that they did so but somehow disingenuously” (sixth defendant’s written submissions, [45]).

62 I do not accept the contentions made in relation to paragraph [93]. That paragraph is to be read in its context. The concept of a “genuine” application for a loan is referred to earlier in the pleading in paragraph [24]. That is to be contrasted with the reference to the conduct of the third defendant in paragraph [34] which, in turn, alleges the third defendant, in effect, falsified the making of the loan application and to paragraphs [36] to [37] of the TASC which alleged fraud on the part of the third defendant. The word “genuine” is used in context throughout the pleading to contrast the making of what may be described, on the one hand, as a regular or proper or true loan application in relation to the plaintiff’s claim against Mr and Mrs Hajar and, on the other hand, a false application in the plaintiff’s pleaded case against the third defendant.

63 When read in context, there is, in my opinion, no ambiguity or uncertainty as asserted in the submissions for the sixth defendant.

64 In reaching this conclusion, I have had regard to the alleged facts concerning the agreement or arrangement that is pleaded between the third and sixth defendants to which I have referred to in some detail in relation to the claim under s.42 of the Fair Trading Act.

65 It is clear that reference to the third defendant in paragraph [92] is to be read as a reference to the third defendant having allegedly misled the plaintiff in pursuit of the sixth defendant’s alleged proposal for the third defendant to obtain a loan in order to pay her costs.

66 Paragraphs [92] and [93] essentially raise a contention by the plaintiff of loss (or potential loss if it was unable to enforce a claim against the first and second defendants) due to the alleged conduct of the third defendant. The plaintiff, in essence, alleges that it acted on a mistake of fact arising from the conduct of the third defendant who it is effectively alleged was, at all material times, acting in concert with the sixth defendant.

67 The person who is said to have benefited from the alleged mistake of fact under which the plaintiff says it acted was contended to be the sixth defendant (paragraph [94] of the TASC).

• The duty of care issue

68 In the sixth defendant’s written submissions, it was contended that the substance of paragraphs [86] and [87] of the TASC is that the sixth defendant was under a “duty” to disclose to the plaintiff, as the nominated credit provider, the real purpose of the proposed advance. The pleading does not state what the source of that duty is, and in circumstances where the duty pleaded is not a tortious one, the sixth defendant submitted that the pleading was “embarrassing”.

69 The plaintiff stated in both written and oral submissions that the plaintiff’s claims as pleaded in the TASC do not allege a tortious-based duty of care. This was expressly stated during the hearing before Registrar Greenwood on 6 August 2009. Rather, as discussed earlier, the “duty” was pleaded as a fact material to the claim made under s 42 of the Fair Trading Act.

70 It having been made clear that the “duty” relied upon in the paragraphs of the pleading referred to above is not a tortious duty but is part of, or relevant to, the plaintiff’s misleading and deceptive conduct claim, it is not necessary to determine the issues raised in the sixth defendant’s submissions in this respect.

Conclusion

71 In relation to the order sought in paragraph 2 of the Notice of Motion, namely, that the TASC be struck out, I have concluded that there is no basis for the making of such an order.

72 The provisions of Part 13 Rule 13.4(1)(b) of the UCPR provide power in the Court to dismiss proceedings generally or in relation to a particular claim. Such an order may be made on an examination of the pleadings, provided the examination shows that the case is absolutely hopeless or there is no possibility of the facts pleaded giving rise to a good cause of action: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 90. It is accepted that, for the purposes of such an application made on the pleadings, the applicant for summary disposal must accept the truth of all allegations in the opposing pleading and the ranges of meaning that the assertions of fact in the pleading are reasonably capable of bearing: Penthouse Publications Limited v McWilliam (NSW Court of Appeal, unreported, 14 March 1991, BC9102223).

73 For reasons earlier stated, I do not consider that the discretionary power to dismiss the claim by the plaintiff against the sixth defendant should be exercised in favour of the sixth defendant.

74 It has been well accepted that, as the effect of such an order is to bring the proceedings to an end at an interlocutory stage, the exercise of the power conferred by the rule will only be appropriate where the defect in the plaintiff’s claim is clearly established. In this respect, there is a close analogy with the concept of “triable issue”: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

75 I have also concluded that there is no basis for a review of the Registrar’s abovementioned decision. In Tomko v Palasty (No 2) [2007] NSWCA 369, the relevant principles on an application for review were discussed. In that case, Basten JA observed that the onus is on the person seeking to have a court set aside or vary a Registrar’s decision to make out a case that, in the interests of justice, the Court should exercise its discretion to do so. A decision on practice or procedure, his Honour observed, will normally require at least demonstration of an error or law, or a House v The King error or a material change of circumstances or evidence satisfying the strict requirements for fresh evidence.

76 For the reasons I have earlier stated, I do not consider that a basis for review of the Registrar’s decision has been established.

77 Accordingly, I make the following orders:-

(1) The Notice of Motion filed on 2 September 2009 is dismissed.

(2) The sixth defendant is to pay the plaintiff’s costs of and incidental to the Notice of Motion.

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