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Mahommed v Unicomb

Mahommed v Unicomb

Case [2018] NSWSC 291 9 March 2018

Jurisdiction

Standing

Amendment of Pleadings

Admissibility of Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mahommed v Unicomb [2018] NSWSC 291
Hearing dates: 20 November 2017
Decision date: 09 March 2018
Jurisdiction: Equity
Before: Robb J
Decision:
The parties are to bring in short minutes of order to give effect to these reasons for judgment.

Catchwords:
CIVIL PROCEDURE—Pleadings—Amendment—whether leave should be granted to further amend statement of claim—whether pleadings sufficiently precise and clear

CIVIL PROCEDURE—Pleadings—Striking out—whether further amended statement of claim should be struck out—whether further amended statement of claim contains allegations of fact capable of supporting claims

EVIDENCE—Admissibility of evidence—Affidavit evidence—whether plaintiff entitled to rely upon unsworn draft affidavit
EQUITY—Trusts and trustees—Powers, duties, rights and liabilities— circumstances in which director personally liable for debts incurred by corporation as trustee
Legislation Cited: Evidence Act 1995 (NSW) s 75
Corporations Act 2001 (Cth) s 197
Cases Cited: Mahommed v Unicomb [2016] NSWDC 114
Mahommed v Unicomb [2017] NSWCA 65
Hardoon v Belilios [1901] AC 118
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Intagro Projects Pty Ltd v Australia and New Zealand Banking Group Ltd [2004] NSWSC 618
Barnes v Addy (1874) LR 9 Ch App 244
Farah Constructions Pty Limited V Say-Dee Pty Limited (2007) 230 CLR 89; [2007] HCA 22
Texts Cited: Heydon, J D and Leeming, M J, Jacobs' Law of Trusts in Australia (8th ed, Lexisnexis)
Category: Principal judgment
Parties: Peter Mahommed (first plaintiff)
Loire Consultants Pty Ltd (second plaintiff)
Pamela Unicomb (first defendant)
Greenhills Securities Pty Ltd (second defendant)
Representation:
Counsel: B Mostafa (defendants)
Solicitors: Leonardus Smits Lawyer (plaintiffs)
Solomon Tudehope Solicitors (defendants)

File Number(s): 2016/53923

Judgment

The plaintiffs in these proceedings are the first plaintiff, Mr Peter Shah Mahommed, and the second plaintiff, Loire Consultants Pty Ltd (Loire).
The defendants are the first defendant, Mrs Pamela Margaret Unicomb, and the second defendant, Greenhills Securities Pty Ltd (Greenhills).
On 11 July 2017, the plaintiffs filed an amended statement of claim. In reality it was a further amended statement of claim (FASOC). The events leading up to the filing of the FASOC will be addressed below.

The notices of motion

By their notice of motion filed on 3 August 2017, Mrs Unicomb and Greenhills sought an order under r 14.28 of the UCPR that the FASOC be struck out. They also sought an order that the proceedings be dismissed under r 13.4 of the UCPR.
Relevantly, r 14.28 provides:

(1)   The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a)   discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b)   has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c)   is otherwise an abuse of the process of the court.
(2)   The court may receive evidence on the hearing of an application for an order under subrule (1).

Rule 13.4 provides:

(1)…

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 Mahommed v Unicomb

Details

AGLC: Mahommed v Unicomb [2018] NSWSC 291
Case: [2018] NSWSC 291
Decision Date: 09 March 2018

CaseChat Overview and Summary

The case of Mahommed v Unicomb involved a dispute between the plaintiff, Mahommed, and the defendant, Unicomb, in the Federal Circuit and Family Court of Australia. The plaintiff sought damages for alleged breaches of fiduciary duty and negligence by Unicomb, who was a director of a corporation acting as a trustee. The primary issue before the court was whether the plaintiff was entitled to rely on an unsworn draft affidavit to support his claims, and if so, whether leave should be granted to further amend the statement of claim to include these allegations.

The court had to determine if the further amended statement of claim was sufficiently precise and clear to warrant leave to amend. Additionally, the court had to assess whether the further amended statement of claim contained allegations of fact capable of supporting the claims made by the plaintiff. The court was also required to consider whether the unsworn draft affidavit should be admitted as evidence and whether it could be relied upon to substantiate the plaintiff's claims.

In its reasoning, the court held that the unsworn draft affidavit was admissible as evidence and could be relied upon. However, the court found that the further amended statement of claim was not sufficiently precise and clear, and the allegations of fact did not adequately support the claims made. Consequently, the court refused leave to amend the statement of claim and ordered that the further amended statement of claim be struck out. The court emphasised the importance of precise and clear pleadings and the necessity for allegations of fact to support the claims made in a statement of claim.

The final orders of the court included refusing the plaintiff's application for leave to further amend the statement of claim and striking out the further amended statement of claim. The court also allowed the defendant's application to strike out the further amended statement of claim, emphasising the importance of meeting the standards of precision and clarity in legal pleadings.

Orders