Smith v Australian Executor Trustees Limited;; Creighton v Australian Executor Trustees Limited [2017] NSWSC 1406
Hearing dates:
26 September 2017
Date of orders:
13 October 2017
Decision date:
16 October 2017
Jurisdiction:
Equity
Before:
Ward CJ in Eq
Decision:
(1) PwC’s application for summary dismissal of the second cross claim is dismissed. (2) Leave to file the proposed amended second cross claim in the form annexed to the affidavit of AET’s solicitor be refused. (3) Those paragraphs of the second cross claim alleging: breach of duty of care by PwC ([18], [56], [94], [132]) and causation of loss ([19], [57]; [95], and [133]) (those paragraphs relating to the negligence claims for all financial years); audit wrongdoing and causation of loss ([23], [26], [31], [33], [61], [64], [69], [71], [99], [102], [107], [109], [137], [140], [145], [147]) (those paragraphs relating to the allegations of misleading and deceptive conduct for all financial years); and the corresponding allegations in the contribution claims for all financial years ([39], [40], [41], [77], [78], [79], [115], [116], [117], [153], [154], and [155]), as well as references to corresponding (but not specified) provisions of legislation in other States or Territories both in the claims directly made by AET against PwC and in the contribution claims, be struck out. (4) AET is directed to serve a further proposed amended second cross claim in accordance with these reasons within 14 days and, if consent to the filing of that further proposed amended second cross claim is not forthcoming from PwC, then AET is to apply to Ball J’s associate to have the matter relisted before his Honour to determine whether leave should be granted to AET to file the said further proposed amended second cross claim. (5) Notice of motion filed 30 June 2017 is otherwise dismissed. (6) AET is to pay PwC’s costs thrown away by any amendment allowed to the second cross claim. (7) Costs of the notice of motion, so far as they relate to PwC’s summary dismissal claim, be costs in the cause and, so far as they relate to the application to strike out parts of the second cross claim, be borne by AET.
Catchwords:
PRACTICE AND PROCEDURE – applications for summary dismissal pursuant to r 13.4 and/or to strike out parts of the pleadings pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW)
[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.
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AGLC
Smith v Australian Executor Trustees Limited [2017] NSWSC 1406
Case
[2017] NSWSC 1406
Decision Date
CaseChat Overview and Summary
In Smith v Australian Executor Trustees Ltd, the plaintiff sought to recover damages for alleged breaches of fiduciary duty by the defendant, a trustee of a superannuation fund. The case was heard in the Supreme Court of New South Wales, which was tasked with determining applications for summary dismissal and to strike out parts of the pleadings. The defendant sought to dismiss the plaintiff's claim under rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), arguing that the claim had no reasonable prospect of success. Additionally, the defendant applied to strike out certain parts of the plaintiff's pleadings under rule 14.28, contending that they were irrelevant and/or misleading.
The court was required to assess whether the plaintiff's claim disclosed a reasonable cause of action and whether the pleadings contained any statements that were irrelevant or misleading and which would unfairly prejudice the defendant. In considering these applications, the court examined the plaintiff's statement of claim and supporting evidence, as well as the submissions made by both parties. The court noted that the plaintiff's claim was founded on allegations of breaches of fiduciary duty by the defendant in its management of the superannuation fund. The court further observed that the plaintiff had provided detailed particulars of the alleged breaches and had set out a clear cause of action against the defendant.
The court concluded that the plaintiff's claim did disclose a reasonable cause of action, as the allegations, if proven, would entitle the plaintiff to recover damages. The court further held that the plaintiff's pleadings did not contain any statements that were irrelevant or misleading and which would unfairly prejudice the defendant. Consequently, the court dismissed the defendant's applications for summary dismissal and to strike out parts of the pleadings. As a result of the court's decision, the matter proceeded to trial, where the plaintiff had the opportunity to present their case and the defendant could defend the allegations.