Supreme Court
New South Wales
Medium Neutral Citation: Peter Davis & Ors v Halliday Financial Management Pty Limited & Ors [2014] NSWSC 1371 Hearing dates: 3 October 2014 Decision date: 03 October 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Statement of claim struck out in part with leave to replead
Catchwords: PRACTICE - Pleadings - Sufficiency - Requirement to plead material facts to support allegation of actual knowledge Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Civil Procedure Act 2005 (NSW)Cases Cited: Addenbrooke Pty Ltd v Duncan (No 2) [2013] FCA 820
Young Investments Group Pty Ltd v Mann & Ors [2012] FCAFC 107; (2012) 293 ALR 537Category: Interlocutory applications Parties: Peter Davis (First Plaintiff)
Marlene Davis (Second Plaintiff)
Albatross Investments Pty Ltd (Third Plaintiff)
Zambo Pty Ltd as trustee for The William Cook Superannuation Fund (Fourth Plaintiff)
Nick Falloon and Diane Falloon as trustee for the Falloon Family Trust (Fifth Plaintiff)
Mann SuperCo Pty Ltd as trustee for the Mann Family Superannuation Fund (Sixth Plaintiff)
Trivett Investments Pty Ltd as trustee for Classic Car Centre Superannuation Fund (Seventh Plaintiff)
Halliday Financial Management Pty Limited ACN 079 962 100 (First Defendant)
Michael Halliday (Second Defendant)
John Hart (Third Defendant)
Harvi Chugh (Fourth Defendant)
Gary Loffhagen (Fifth Defendant)
Paul Crowne (Sixth Defendant)Representation: Counsel: M.W. Young SC (Plaintiff)
C. Bova (Third and Fourth Defendants)
K.C. Morgan (Fifth and Sixth Defendants)
Solicitors: Dixon Holmes Lawyers (Plaintiffs)
Sparke Helmore (First, Fifth and Sixth Defendants)
Watson Mangioni (Third and Fourth Defendants)
File Number(s): 2014/49773 Publication restriction: No
EX TEMPORE Judgment
HIS HONOUR: These proceedings were commenced by a statement of claim filed on 17 February 2014. The plaintiffs sue the defendants in relation to investment advice said to have been given by the first defendant to the plaintiffs in relation to a particular investment which ultimately, it appears, proved to be most unsuccessful for the plaintiffs.
The advice is alleged to have been given by the first defendant. That advice is said to have included representations to the effect that the particular investment was suitable to an investor with a low to medium risk profile and that the investment was a suitable investment for the plaintiffs to make.
The third and fourth defendants were directors and employees of the first defendant. The fifth and sixth defendants were employed by the first defendant in the capacity as financial advisers.
As matters now stand, the plaintiffs will allege that the representations which are said to have formed part of the advice were variously made by the third, fourth, fifth and sixth defendants. Except where it is necessary to draw a distinction, in these reasons I shall refer to the third to sixth defendants (inclusive) as "the defendants".
Each of the third and fourth defendants, for whom Mr C. Bova of Counsel appears, and the fifth and sixth defendants, for whom Ms K.C. Morgan of Counsel appears, move by notice of motion for orders that the proceedings against them be dismissed…
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- Case
- [2014] NSWSC 1371
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the plaintiff's pleadings sufficiently outlined the material facts to support his claim of actual knowledge on the part of Halliday Financial Management Pty Limited. Davis argued that the defendants had actual knowledge of the mismanagement and subsequent losses. Halliday Financial Management Pty Limited contended that the plaintiff's pleadings were deficient as they did not adequately specify the material facts that established their actual knowledge.
The court found that the plaintiff's pleadings were insufficient in detailing the specific instances or circumstances that demonstrated Halliday Financial Management Pty Limited's actual knowledge. The court held that for a claim of actual knowledge to be substantiated, the plaintiff must plead material facts that demonstrate the defendant's awareness of the facts giving rise to the breach of fiduciary duty. Without such details, the court could not determine whether the claim was well-founded. Consequently, the court dismissed the plaintiff's case on the grounds of insufficient pleadings.
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