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Simpson v RBM (No 2)

Simpson v RBM (No 2)

Case [2010] NSWSC 166 15 March 2010

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Civil Litigation & Procedure

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CITATION: Simpson v RBM and Ors (No 2) [2010] NSWSC 166

HEARING DATE(S): 24/02/10, 26/02/10

JUDGMENT DATE :
15 March 2010

JUDGMENT OF: Hoeben J

DECISION: See Paragraph 113.

CATCHWORDS: PRACTICE AND PROCEDURE - draft statement of claim - claim by disabled plaintiff against previous solicitors and trustee company - motions to strike out parts of draft statement of claim - objections as to form - rolled up pleadings and failure to differentiate conduct of each defendant - objections as to form substantially made out - whether causes of action disclosed against trustee company - whether fiduciary relationship existed between plaintiff and trustee company before trust established - whether undue influence exerted by trustee company and whether duty of care by trustee company existed before trust created - application of General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 - MOTION FOR SECURITY FOR COSTS - plaintiff impecunious but beneficiary under discretionary trust - applicable principles - application refused.

LEGISLATION CITED: Civil Procedure Act 2005
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Beach Petroleum NL v Abbott Tout Russell Kennedy (1997) 26 ACSR 114
Bonner v Fauna Productions Pty Limited [2009] NSWSC 604
Breen v Williams (1996) 186 CLR 71
Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258
Chapman v Luminis Pty Limited [2002] FCA 496
General Steel Industries Inc v Commissioner of Railways (NSW) (1965) 112 CLR 125
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41
Johnson v Buttress (1936) 56 CLR 113
Makawe Pty Limited v Randwick City Council [2009] NSWCA 412
Philips Electronics Australia Pty Limited v Matthews (2002) 54 NSWLR 598
Pilmer v Duke Group Limited & Ors (2001) 207 CLR 165
Winnote Pty Limited (In Liq) & Anor v Page [2006] NSWCA 287; (2006) 68 NSWLR 531

PARTIES: Calandre Julia Theresa Simpson - Plaintiff
RBM - First Defendant
FWH - Second Defendant
Perpetual Trustee Company Limited - Fifth Defendant
JH - Sixth Defendant
TH - Seventh Defendant

FILE NUMBER(S): SC 2008/00289147

COUNSEL: Mr DJ Higgs SC/Mr CJ Bevan - Plaintiff
Ms CE Adamson SC/Mr D Roche - First and Second Defendants
Mr R Dubler SC/Mr T Maltz - Fifth Defendant
Mr TM Faulkner - Sixth and Seventh Defendants

SOLICITORS: TL Lawyers - Plaintiff
Yeldham Price O'Brien Lusk - First and Second Defendants
TressCox Lawyers - Fifth Defendant
Wotton Kearney - Sixth and Seventh Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Monday, 15 March 2010

2008/00289147 – Calandre Julia Theresa SIMPSON v RBM and Ors (No 2)
JUDGMENT

1 HIS HONOUR:

Nature of proceedings

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 Simpson v RBM (No 2)

Details

AGLC: Simpson v RBM (No 2) [2010] NSWSC 166
Case: [2010] NSWSC 166
Decision Date: 15 March 2010

CaseChat Overview and Summary

The case of Simpson v RBM (No 2) involved the plaintiff, who is disabled, bringing a claim against their former solicitors and a trustee company. The plaintiff sought damages for alleged professional negligence and breach of fiduciary duty. The court was asked to determine whether certain parts of the draft statement of claim should be struck out due to objections as to form, including rolled-up pleadings and a failure to differentiate the conduct of each defendant. Additionally, the court examined whether the causes of action disclosed against the trustee company were valid, specifically whether a fiduciary relationship existed before the trust was established, whether undue influence was exerted by the trustee company, and whether the trustee company owed a duty of care before the trust was created.

The court considered whether the objections as to form were substantially made out and whether the plaintiff's claims against the trustee company were adequately disclosed. The court applied the principles from General Steel Industries Inc v Commissioner for Railways (NSW), emphasising the need for clarity in pleadings and the differentiation of causes of action against multiple defendants. The court found that the objections as to form were substantially made out and that the plaintiff's draft statement of claim needed to be amended to address these issues. Furthermore, the court determined that the plaintiff had not sufficiently disclosed a cause of action against the trustee company prior to the establishment of the trust, and thus, those claims needed to be clarified.

In addition to the objections as to form, the court also considered the plaintiff's application for security for costs. The plaintiff argued that they were impecunious but a beneficiary under a discretionary trust. The court assessed the applicable principles for such applications and ultimately refused the application for security for costs. The court found that the plaintiff's financial circumstances did not warrant an order for security for costs, given the specific nature of their trust benefits.

The court ordered that the plaintiff amend the draft statement of claim to address the objections as to form, clearly differentiate the conduct of each defendant, and sufficiently disclose the causes of action against the trustee company. The court also refused the plaintiff's application for security for costs.

Orders