Read v Burns

[2016] ACTSC 1

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Read v Burns & Ors

Citation:

[2016] ACTSC 1

Hearing Date(s):

10 November 2015

DecisionDate:

25 January 2016

Before:

Burns J

Decision:

See [36]-[37]

Catchwords:

CORPORATIONS – Arrangements and Reconstructions – deed of company arrangement – effect – whether binding on plaintiff’s claim – plaintiff bound under deed – second defendant required to plead the deed – plaintiff’s claim to be dismissed.

TRADE AND COMMERCE – Trade Practices – misleading and deceptive conduct – misrepresentations – managed investment scheme – accessorial liability – s 75B of the Trade Practices Act 1974 (Cth) – pleading requirements – further and better particulars to be provided.

Legislation Cited:

Corporations Act 2001 (Cth) ss 444A, 444D, 444E, 444J, 565

Australian Securities and Investment Commission Act 2001 (Cth)

Trade Practices Act 1974 (Cth) s 75B

Cases Cited:

Hoath v Connect Internet Services (2006) 229 ALR 566

Lehman Brothers Holdings v City of Swan (2010) 240 CLR 509

Re: RL Child & Co Pty Ltd (1986) 5 NSWLR 693

Parties:

Jeffery Maxwell Read (Plaintiff)

Diana Mary Burns (First Defendant)

Prime Property Investment Pty Ltd (Second Defendant)

Sidney Knell (Third Defendant)

Representation:

Counsel

Self-represented (Plaintiff)

No appearance (First Defendant)

Dr B O’Hair (Second and Third Defendants)

Solicitors

Self-represented (Plaintiff)

Boettcher Law (First Defendant)

S & T Lawyers (Second and Third Defendants)

File Number(s):

SC 350 of 2008

BURNS J:

1. The plaintiff is currently prosecuting proceedings against the first, second and third defendants with respect to losses he alleges he sustained by reason of purchasing a property in NSW, and participating in a managed investment scheme with respect to that property.  The first defendant is a firm of lawyers who acted for the plaintiff on the purchase of the property.  The second defendant is a company which is said to have acted as the vendor’s agent on the sale of the property.  The third defendant is alleged to have been a “principal” of the second defendant.

1. The plaintiff is currently not represented by a lawyer, although he has been represented by lawyers in these proceedings in the past.  Most of the current Statement of Claim, the Further Amended Statement of Claim of September 2013 (the FASOC), was drafted by the plaintiff personally.  I have encouraged the plaintiff on numerous occasions to obtain legal representation and advice.  These proceedings are listed for hearing commencing on 1 February 2016.

1. I have before me two applications in these proceedings.  The first is an application by the second defendant that the claim against it be dismissed, and that the plaintiff pay the second defendant’s costs of the application on an indemnity basis.  The second application is by the third defendant, who also seeks an order that the claims against him be dismissed and that the plaintiff also pay his costs on an indemnity basis.

The application by the second defendant

1. These proceedings were commenced in 2008.  In December 2013 the second defendant executed a deed of company arrangement (the DOCA) in compliance…