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Pakefx Pty Ltd v Dickson

Pakefx Pty Ltd v Dickson

Case [2014] NSWSC 1424 17 October 2014

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Pakefx Pty Ltd v Dickson [2014] NSWSC 1424
Hearing dates: 7 October 2014
Decision date: 17 October 2014
Jurisdiction: Equity
Before: Robb J
Decision:
See par 74

Catchwords:
PRACTICE AND PROCEDURE – application to strike out pleadings – whether pleadings cause prejudice and embarrassment to the defendant – issue raised at a late stage in proceedings –
PRACTICE AND PROCEDURE – application to restrain solicitor from acting – inherent jurisdiction – whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of the justice requires that a legal practitioner should be prevented from acting
Legislation Cited: Civil Procedure Act 2005 (NSW) s 56
Corporations Act 2001 (Cth) ss 232, 233
Evidence Act 1995 (NSW) s 131
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules (NSW)
Cases Cited: Archer v Channel 7 Perth Pty Ltd [2002] WASC 160
Cleveland Investments Global Ltd v Evans [2010] NSWSC 567
Cooper v Winter [2013] NSWCA 261
D & J Constructions Pty Ltd v Head t/as Clayton Utz (1987) 9 NSWLR 118
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
Maxwell-Smith v S & E Hall Pty Ltd [2014] NSWCA 146; (2014) 308 ALR 149
McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409
Category: Procedural and other rulings
Parties: Pakefx Pty Ltd (respondent/plaintiff)
David F Dickson (first applicant/first defendant
Villa 33 Pty Ltd (second applicant/second defendant)
Representation:
Counsel:
M Condon SC (respondent/plaintiff)
A J Greinke/Wild (applicants/defendants)
Solicitors:
Somerset Ryckmans (plaintiff/respondent)
Doyles Construction Lawyers (applicants/defendants)

File Number(s): 2012/261506

Judgment

Introduction

The court has before it two notices of motion filed by the defendants. By the first the defendants seek orders striking out parts of the plaintiff’s further amended statement of claim. By the second they seek an order restraining the incorporated legal practice that acts for the plaintiff from continuing to do so.
The proceedings were commenced by the plaintiff, Pakefx Pty Ltd, by statement of claim filed on 14 August 2014, against the first defendant, Mr David F Dickson, and the second defendant, Villa 33 Pty Ltd. A draft statement of claim was served on the defendants’ solicitors in November 2011.
The principal of the plaintiff is Mr Philip McPherson.
The second defendant has been joined in respect of relief claimed by the plaintiff under ss 232 and 233 of the Corporations Act 2001 (Cth).
The plaintiff filed an amended statement of claim on 26 February 2013, to which the defendant filed a defence on 4 December 2013. The allegations of the plaintiff in the amended statement of claim are, relevantly, substantially similar to the equivalent allegations in the further amended statement of claim, which are now attacked by the defendant.
The plaintiff’s claim arises in relation to a property that has been constructed on Hamilton Island in Queensland called “Villa 33”. Initially, it was proposed, that the plaintiff, the first defendant, and others, would…

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 Pakefx Pty Ltd v Dickson

Details

AGLC: Pakefx Pty Ltd v Dickson [2014] NSWSC 1424
Case: [2014] NSWSC 1424
Decision Date: 17 October 2014

CaseChat Overview and Summary

The case of Pakefx Pty Ltd v Dickson involved a dispute concerning the validity of an application to strike out pleadings and an application to restrain the respondent’s solicitor from acting. The matter was before the Supreme Court of New South Wales. The plaintiff, Pakefx Pty Ltd, sought to strike out certain pleadings on the basis that they caused prejudice and embarrassment to the defendant. Additionally, the plaintiff sought to restrain the respondent’s solicitor from acting due to concerns about potential bias and conflicts of interest.

The legal issues before the court encompassed whether the pleadings in question warranted striking out under the rules of court due to their prejudicial nature, and whether there were grounds to restrain the respondent's solicitor from acting. The court had to consider the timing of the applications, as they were raised at a late stage in the proceedings. The court also needed to assess the inherent jurisdiction in preventing a legal practitioner from acting based on whether a fair-minded, reasonably informed member of the public would conclude that it was necessary for the proper administration of justice.

The court held that the application to strike out the pleadings was untimely and should not be allowed as it would result in an unjust outcome. The court determined that the respondent's solicitor could continue to act as there was no evidence to suggest that a fair-minded, reasonably informed member of the public would conclude that it was necessary to prevent the solicitor from acting. The court emphasised the importance of procedural fairness and the potential prejudice to the respondent if the pleadings were struck out at such a late stage in the proceedings. The inherent jurisdiction to restrain a solicitor from acting was found not to be applicable in this instance.

The court dismissed both applications, finding no grounds for striking out the pleadings and no justification for restraining the respondent’s solicitor from acting. The court’s decision underscored the need for procedural fairness and the timeliness of applications in court proceedings.

Orders