Sovereign MF Limited v Compliance and Risk Services Pty Ltd
[2013] VSC 213
•29 April 2013
| Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2011 2622
| SOVEREIGN MF LIMITED (ACN 104 694 555) (in its capacity as responsible entity of the Sovereign Aged Care Property Fund) (ARSN 121 778 863) | Plaintiff |
| v | |
| COMPLIANCE & RISK SERVICES PTY LIMITED (ACN 101 956 414) and MURRAY JOSEPH JONES | Defendants |
JUDGE: | LANSDOWNE AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 November 2012 |
DATE OF JUDGMENT: | 29 April 2013 |
CASE MAY BE CITED AS: | Sovereign MF Limited v Compliance and Risk Services Pty Ltd and anor |
MEDIUM NEUTRAL CITATION: | [2013] VSC 213 |
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PRACTICE AND PROCEDURE - leave to file a substituted statement of claim – allegations of breach of statutory duty as against defendants – plaintiff concedes itself in breach - whether plaintiff as responsible entity is required to show to obtain leave that questions of possible conflict of interest with scheme members have been properly addressed – paragraphs of proposed substituted statement of claim embarrassing and/or do not disclose a cause of action – leave refused – entry of plaintiff into administration no bar to delivery of judgment - Corporations Act 2001 (Cwlth) ss 9, 440D, 601FB, 601FC, 601FD,601JC and 601JD – r 23.02 Supreme Court (General Civil Procedure) Rules 2005
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Hollett, solicitor | Wantrup & Associates as town agents for Bowen Buchbinder Vilensky |
| For the Defendants | Mr A. Strahan of counsel | Norton Rose Australia |
HER HONOUR:
Introduction and summary
The plaintiff seeks by summons filed 19 October 2012 leave to file what is there described as a “substituted” statement of claim. The summons was returnable on 7 November 2012 and the application as opposed by the defendants was heard that day. I apologise for the delay in the delivery of these reasons.
The plaintiff’s summons is supported by the affidavit of Craig Leonard Hollett, the solicitor for the plaintiff. The affidavit exhibits the proposed substituted statement of claim and otherwise deposes only to the fact that Mr Hollett’s firm commenced to act for the plaintiff in about August 2012 and that he formed the view that the existing amended statement of claim required substantial amendment in order to ensure that all questions in the proceeding are effectively and completely determined and adjudicated upon.
The proceedings commenced by writ and statement of claim filed 27 May 2011. The affidavit in opposition of Renee Gorenstein affirmed 2 November 2012 sets out in detail the history of the proceedings thereafter. What that history shows is that the current proposed substituted statement of claim is the seventh iteration of the plaintiff’s case, commencing with the first iteration in the writ and statement of claim filed in May 2011. After that initial iteration, the plaintiff filed and served an amended statement of claim in July 2011. The defendant subsequently sought to have that statement of claim struck out, which application was successful in September 2011.
There followed three further proposed iterations served 30 September 2011, 9 November 2011 and 30 November 2011. The defendants objected to the proposed amended statements of claim served on 30 September 2011 and on 9 November 2011. The defendants consented to the filing of the proposed substituted statement of claim served 30 November 2011 (the fifth iteration) and that document was subsequently filed on 12 December 2011 as an amended statement of claim pursuant to consent orders to that effect made 9 December 2011. That amended statement of claim dated 12 December 2011 is the current statement of claim.
Ms Gorenstein’s affidavit sets out that thereafter the defendants served their defence and counterclaim on 29 February 2012 while still expressing the view that the amended statement of claim was deficient and embarrassing with respect to the allegations of breach, causation and loss and seeking further and better particulars of those matters. The plaintiff served its defence to the defendants’ counterclaim on 28 March 2012 and subsequently informed the solicitors for the defendants that the plaintiff was in the process of finalising a further amended statement of claim. This document, the sixth iteration, was served 9 July 2012. The summons before me was subsequently filed and served on 22 October 2012 seeking leave to file the current iteration, the seventh, which Ms Gorenstein affirms is different again from the sixth iteration.
It is unclear from Ms Gorenstein’s affidavit what, if anything of significance, transpired between the service of the sixth iteration and the filing of the summons. I infer, however, that what occurred was the change of solicitors in August 2012, those solicitors forming the view that substantial amendment was required and causing the current proposed substituted statement of claim to be drawn.
For the reasons given in detail below, I will refuse leave to file and serve the proposed substituted statement of claim on the pleading grounds advanced by the defendants.
A further comment is required in relation to delivery of this judgment. The application was listed on 19 April 2013 for delivery of judgment today, 29 April 2013, in conjunction with a directions hearing in this proceeding and another related proceeding, in which the instant first defendant is the plaintiff and the instant plaintiff the defendant. I was advised by the solicitors for the plaintiff on Friday 26 April 2013 that the plaintiff had gone into administration on Friday 19 April 2013. Those solicitors submitted that on that basis judgment could not be handed down.
In my view that is not correct. Section 440D(1) of the Corporations Act provides as follows:
440D Stay of proceedings
(1) During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:
(a) with the administrator’s written consent; or
(b) with the leave of the Court and in accordance with such terms (if any) as the Court imposes.
(2) Subsection (1) does not apply to:
(a) a criminal proceeding; or
(b) a prescribed proceeding.
The section prevents a step in litigation concerning a company in administration at the instance of the company, if the litigation is in relation to the property of the company, or at the instance of the other party if the company is the defendant- it does not prevent the delivery of judgment in respect of an application already heard, which is a step taken by the Court, not by a party. The solicitors for the plaintiff advise that they have been instructed by the solicitors for the administrator not to take any further step, including attending to receive judgment. On that basis I have indicated I will excuse their attendance, and that of the defendants if they wish.
Facts and submissions
The plaintiff says that the current proposed substituted statement of claim adds two further causes of action to the existing cause of action, which is an allegation of breach of contract. The two additional causes of action sought to be added are breach of statutory duty and negligence. The plaintiff says that these causes of action arise out of the same factual matrix and leave should be granted because, although the proceedings have been on foot since 2011, they are still at an early stage and have not yet progressed beyond the stage of pleadings being filed.[1] The plaintiff asserts that it has provided sufficient explanation, being the change of solicitors, as to why further amendment is necessary and that there is no irremediable prejudice to the defendants if leave is granted as any prejudice can be cured by an order for costs.
[1]Plaintiff’s submissions in support dated 2 November 2012 at [12].
The solicitor for the plaintiff in oral submissions adds that some of the amendments address concerns expressed by the defendants and that the proposed substituted statement of claim also seeks to add considerable further information in relation to the existing cause of action, being breach of contract.
The plaintiff is the responsible entity of a managed investment scheme, being an aged care property fund. The plaintiff alleges that the first defendant was engaged by the plaintiff to provide compliance services, being services to ensure compliance with the plaintiff’s obligations under the Corporations Act 2001 (Cwlth) (“the Corporations Act”) and the conditions of its AFS licence. The second defendant is the sole director and shareholder of the first defendant. The plaintiff alleges that the second defendant was a member of the plaintiff’s compliance committee and carried out the role of responsible officer and nominated key person for the plaintiff in relation to the AFS licence.
The broad facts giving rise to the proceedings as outlined by counsel for the defendants in his oral submissions, with which the plaintiff did not disagree, are as follows:
What is in dispute between the parties is a transaction or a series of transactions which involved the purchase or acquisition of some properties purportedly on behalf of the scheme, that is for the benefit of scheme members, by Sovereign as the responsible entity of the scheme.
The properties that were purchased did not come into the hands of the custodian, as they were required to under the terms that applied to the operation of the scheme, and they were sold without reference to Sovereign, I think, it’s a broad characterisation of it, and some money has been lost as a consequence. So there was a failure to protect the scheme assets in short and that’s what the claim is all about.[2]
[2]Transcript of argument, at p8 line 25 to p9 line 7.
From examination of the current amended statement of claim, the nub of the claim appears to be that the plaintiff as the responsible entity of the managed investment scheme acquired property at Keilor Downs and at Parkdale for the benefit of its members which, in accordance with the requirements of the Corporations Act and its licence, should have been held by a custodian, Sandhurst Trustees Limited, but for reasons not detailed in either the current or proposed pleading, transfer of that property to those appointed custodians did not occur. The plaintiff was thus in breach of its obligations under its licence and the Corporations Act and the members of the plaintiff subsequently suffered financial loss. Exactly what it is said that transpired that lead to this loss is not clear to me, but that clarity is not said to be necessary for the purposes of this application.
Ms Gorenstein’s affidavit might suggest that the defendants’ objection to the grant of leave was based simply on delay and the number of iterations through which the plaintiff’s statement of claim had already gone. Mr Strahan, counsel for the defendants, did not disavow reliance on these matters but in oral submissions indicated that there were two substantive objections that the defendants wish to advance. In the absence of these substantive objections, I would not, in the absence of demonstrated irremediable prejudice to the defendants, have considered delay and the number of attempts to plead the plaintiff’s case sufficient reason to refuse leave.
The substantive objections are as follows. The defendants object to the proposed substituted statement of claim on a number of pleading grounds, to which I will return shortly. They also, however, take the overriding preliminary objection to the grant of leave that the proposed substituted statement of claim makes it clear that the plaintiff itself was in breach of its obligations under the Corporations Act and under the terms of its licence. The defendants contend that this leads to a real possibility of conflict of interest between the interests of the plaintiff, as the responsible entity for the managed investment scheme, and the interests of the members of the scheme, being the persons who have ultimately borne the loss. The contention of counsel for the defendants is that the Court should not exercise its discretion in favour of the plaintiff to grant leave to rely on the substituted statement of claim without sufficient proof that any such possible conflict has been adequately addressed. That proof could only be given, as the defendants properly contend, on affidavit evidence. I will deal with this objection first.
Objection based on conflict of interest
The defendants rely on Brookfield Multiplex Limited and anor v International Litigation Funding Partners Pte Limited and ors,[3] (“Brookfield”) a decision of the Full Federal Court in support of this objection. In that case the appellant was being sued in a representative i.e. class action. The appellant’s contention was that the arrangements between the members of the class, the litigation funder and a firm of solicitors constituted a managed investment scheme. The appellant had sought declarations and injunctive relief directed to preventing the funding arrangement from continuing because such managed investment scheme was not registered and had no responsible entity. On appeal before the Full Federal Court by majority the appellant was successful in its contention that the arrangements constituted a managed investment scheme. Justices Sundberg and Dowsett, in indicating that they would grant declaratory relief (the precise form of the relief to be the subject of further submissions), said as follows in the portion relied upon by the defendants:
We consider that Multiplex, as the respondent in the representative proceedings, is entitled to have confidence, in its dealings with MBC as solicitors on the record, that they are properly authorised to act, albeit in a representative action. It is also entitled to have confidence that the proceedings will not, in the future, be disrupted or delayed by any intervention by ASIC or by a disgruntled group member, asserting an irregularity of the kind which Multiplex has demonstrated. That interest is sufficient to justify the grant of declaratory relief, although it may have to be balanced against the discretionary matters outlined above. (emphasis added)
[3][2009] FCAFC 147.
The defendants relied particularly on the statement I have italicised above. Here, the defendants say that the plaintiff must demonstrate that such intervention is unlikely before the Court should grant an indulgence to the plaintiff.
The plaintiff through its solicitor says that ASIC is on notice of the plaintiff’s breaches of the Corporations Act and its licence, as are the members of the managed investment scheme. This information is not on affidavit and so could not constitute sufficient proof, if such proof is properly to be required in this application.
It is in that respect that I do not accept the defendants’ contention. This is an application for leave essentially to amend (albeit substantially) a statement of claim in proceedings that have been on foot since May 2011. Although it is only in this proposed substituted statement of claim that the plaintiff’s own dereliction of duties is made plain, it may well have been the case that this was, or should have been, evident to the defendants at least from the commencement of these proceedings, and possibly earlier. The defendants admit in their defence that they played a role in the compliance obligations of the plaintiff, although the role is characterised differently from the characterisation in the amended statement of claim. Notwithstanding these matters, the defendants have not, to my knowledge, taken this objection previously.
Counsel for the defendants says that this is not a bar – if it is a good objection, the failure to take it previously should not mean that it cannot succeed now, although it may have other consequences, for example as to costs. I consider that correct, but my fundamental concern remains that this application is not the appropriate context within which to take this objection. In my view, the objection, if it is to be taken, should be taken fairly and squarely on notice to the plaintiff in an appropriate application initiated by the defendants. This is what occurred in Brookfield. If raised in that way, the plaintiff would have an opportunity to put on appropriate affidavit material and the issue would be squarely raised before the Court.
Here, by contrast, it does not appear that the plaintiff was given any prior notice of this objection to be taken by the defendants. While it could be said to emerge from the plaintiff’s own proposed pleading, in my view objection to that pleading should be limited to the usual pleading grounds. I now turn to those objections.
Pleading concerns
The defendants have raised concerns in relation to paragraphs of the proposed substituted statement of claim from paragraph 30 to paragraph 40. These paragraphs fall within the section of the document that seeks to introduce the new causes of action for breach of statutory duty by the first and second defendants and negligence.
The defendants take objection to paragraphs 30, 31, 33, 34, 35, 36, 38, 39 and 40. I consider these objections to be well founded as they fall within the preconditions for strike out set out in rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2005. That rule provides as follows:
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading –
(a)does not disclose a cause of action or defence;
(b)is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; or
(d)is otherwise an abuse of process of the Court –
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
The paragraphs that I consider apply to the paragraphs of the proposed substituted statement of claim to which objection is taken are paragraphs (a) and (c).
Plea of breach of statutory duty
The apparent intention in paragraphs 29 to 36 inclusive of the proposed substituted statement of claim is to plead that the first and second defendants owed statutory duties to the plaintiff which they breached. The allegation that these breaches occasioned loss to the plaintiff is included in a rolled up allegation of loss and damage in paragraph 40.
The defendants first take objection to paragraph 30 which relates to the vicarious liability of the first defendant for the actions or omissions of the second defendant on the basis that it is embarrassing because it contains so many concepts. I agree. The paragraph is, in my view, virtually unintelligible and must be re‑pleaded.
Alleged duty as an officer of the responsible entity
The duties that are then pleaded in paragraphs 31 to 33 are said to arise under two sections of the Corporations Act. The duty pleaded in paragraph 31 is said to arise under s 601FD of the Act. That section is headed “Duties of officers of responsible entity” and relevantly provides:
(1)An officer of the responsible entity of a registered scheme must:
(a)act honestly; and
(b)exercise the degree of care and diligence that a reasonable person would exercise if they were in the officer’s position; and
(c)act in the best interests of the members and, if there is a conflict between the members’ interests and the interests of the responsible entity, give priority to the members’ interests; and
(d)not make use of information acquired through being an officer of the responsible entity in order to
(i)gain an improper advantage for the officer or another person; or
(ii)cause detriment to the members of the scheme; and
(e)not make improper use of their position as an officer to gain, directly or indirectly, an advantage for themselves or for any other person or to cause detriment to the members of the scheme; and
(f)take all steps that a reasonable person would take, if they were in the officer’s position, to ensure that the responsible entity complies with:
(i)this Act; and
(ii)any conditions imposed on the responsible entity’s Australian Financial Services licence; and
(iii)the scheme’s constitution; and
(iv)the scheme’s compliance plan.
Paragraph 31 pleads in substance that the second defendant owed at all relevant times the duties set out in s 601FD(1)(b), (c) and (f).
The defendants take objection to this proposed pleading on the basis that no cause of action is shown as against the second defendant because it is nowhere pleaded that the second defendant was an “officer” of the responsible entity, being the plaintiff, within the meaning of s 601FD. It is pleaded in the proposed substituted statement of claim that the second defendant was the “responsible officer” and the “key person nominated on the AFS licence” and perhaps the view was taken by the plaintiff that this was sufficient (the plea is repeated in the first paragraph under the heading “First and Second Defendants’ Statutory Duties” being proposed paragraph 29). These terms are not, however, defined in the pleading nor are the functions of those officers or duties of the second defendant in that capacity set out.
In any event, the defendants say that “officer” for the purposes of s 601FD is defined in s 9 of the Corporations Act relevantly as follows:
Officer of a corporation means:
(a)a director or secretary of the corporation; or
(b)a person:
(i)who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
(ii)who has the capacity to affect significantly the corporation’s financial standing.
The second defendant was not a director or secretary of the plaintiff. The plaintiff says that it relies on paragraph (b)(i) and (ii) of the definition of “officer” but conceded in argument[4] that the material facts by reason of which the second defendant fell within that definition are not pleaded.
[4]Transcript at p 35.
This is a sufficient basis to refuse leave in respect of this proposed cause of action.
The defendants also object to both the proposed plea of breach of this duty and that said to arise under s 601JD of the Corporations Act on the basis that any duties created by those sections are owed to scheme members and not to the responsible entity. The plaintiff replies that under s 601FC(2) of the Corporations Act the responsible entity holds scheme property on trust for scheme members, and so duties are owed to it as trustee.
I express no view about the specific issue as to whom the statutory duties are owed. It is not necessary to do so, in my view, because, subject to the questions of conflict of interest adverted to earlier, I accept that the plaintiff as trustee for the members can bring proceedings on their behalf. This is because under s 601FB of the Act, the responsible entity is to operate the scheme and by virtue of s 601FC is required to act in the best interests of the members and, if there was a conflict between the members’ interests and its own interests, give priority to the members’ interests. Accordingly, even if it is the case that duties imposed on officers of the responsible entity and on members of a compliance committee are owed to the members of the scheme, rather than to the responsible entity, I am satisfied that the plaintiff as the responsible entity can pursue this cause of action on behalf of the members.
Alleged duty as member of the compliance committee
Paragraph 32 of the proposed substituted statement of claim pleads functions of the plaintiff’s compliance committee and proposed paragraph 33 alleges that the second defendant as a member of the compliance committee owed duties to the plaintiff pursuant to s 601JD of the Corporations Act. Section 601JD relevantly provides as follows:
(1)A member of a scheme’s compliance committee must:
(a)act honestly; and
(b)exercise the degree of care and diligence that a reasonable person would exercise if they were in the member’s position; and
(c)not make use of information acquired through being a member of a committee in order to:
(i)gain an improper advantage for the member or another person; or
(ii)cause detriment to the members of the scheme; and
(d)not make improper use of their position as a member of the committee to gain, directly or indirectly, an advantage for themselves or for any other person or to cause detriment to the members of the scheme.
The objection taken by the defendants is that the Act imposes functions on the whole of the committee not individual members. I accept that the functions of a compliance committee pursuant to s 601JC are in respect of the committee as a whole, but proposed paragraph 33 is directed to s 601JD which does impose duties on individual members. Paragraph 33 asserts that the second defendant as a member of the compliance committee owed duties to the plaintiff and then pleads the duties imposed on members by s 601JD(1)(b) and (d).
Nevertheless, I consider that leave should be refused in respect of proposed paragraph 33 because it is embarrassing. Although it pleads affirmatively that the second defendant was a member of the compliance committee (which is pleaded in more detail in paragraph 3(c) of the proposed substituted statement of claim), the other references given in paragraph 33 as laying the foundation for the duties there asserted are, in my view, confusing and so embarrassing. These other references are to paragraph 3(b) (which asserts that the second defendant provided compliance services on behalf of the first defendant as the plaintiff’s compliance officer), paragraph 8 (which recites that the second defendant acted as the responsible officer and nominated key person for the plaintiff for a particular period), paragraph 11 (which recites again that the second defendant was the responsible officer and nominated key person for the plaintiff for a particular period) and paragraph 14 (which recites that the second defendant provided “Compliance Services” to the plaintiff in a later period). None of these specific references plead that the second defendant was a member of the plaintiff’s compliance committee, which is the necessary foundational fact for the imposition of the duty alleged by paragraph 33.
Allegation of breach of statutory duties
Breaches of these duties are then sought to be pleaded in proposed paragraphs 34 and 35. Those paragraphs fail consequentially on the failure of the paragraphs pleading the duty.
I also have concerns, although these were not articulated by the defendants, that the allegations of breach by the second defendant by way of improper use of his position as a member of the compliance committee in paragraph 35 may be insufficiently particularised. The particulars appear to be directed to failure to exercise appropriate care and diligence rather than improper use.
The defendants contend that paragraphs 34 and 35 should additionally fail because they assert in the particulars that the second defendant “failed to ensure” that certain matters did not occur, without pleading the material facts as to how he could have ensured those matters did not occur, that is, any position of control over the plaintiff. Certainly these particulars would benefit by greater elaboration of exactly what the second defendant should have done and failed to do, or did and should not have done, but there is an allegation in proposed paragraph 7(a) that it was a term of the July 2005 Agreement that the first defendant would provide management support to the plaintiff, “so as to ensure due compliance by the Plaintiff with the Schedule of Conditions of the AFS Licence”. It may be that this is sufficient. A pleading to the same effect is contained within paragraph 8(a) of the current amended statement of claim, which was filed with the consent of the defendants.
The defendants object to paragraph 36 on the basis that it is embarrassing because it contains both a plea that the first defendant is vicariously liable for the actions of the second defendant and that that this constituted breach of its own statutory duties to the plaintiff. I consider this objection sound. Further, the paragraph fails as a consequence of the failure of the earlier paragraphs in relation to the second defendant.
Additional plea of “Contractual and/or Common Law Duties”
The defendants object to paragraph 38 as embarrassing. They say that paragraph (a) appears to replicate the plea of statutory duty, but as a common law or contractual duty; paragraph (b) appears to be a plea of a fiduciary duty, without sufficient pleading, or statutory duty; and paragraph (c) also seeks to plead a statutory duty as a contractual or common law duty without, in the case of any paragraph, alleging that there is a term to that effect in the contracts that are earlier pleaded. I consider the objections to be good. In addition, I consider paragraph 38 to be embarrassing because it rolls up duties in both contract and at common law when these should be separately identified and pleaded. Proposed paragraph 38 also seeks to roll up obligations of both the first and the second defendants without identifying whether the obligations are distinct and is also objectionable on that basis.
Further, the preceding paragraph, proposed paragraph 37, pleads that the second defendant “was at all relevant times the responsible officer of the Plaintiff and/or the key person nominated on the AFS Licence.” It is entirely unclear to me how this is said to relate to the contractual and/or common law duties sought to be pleaded here, particularly, as indicated earlier, the functions and duties of a responsible officer and key person are not pleaded.
Objection is taken to proposed paragraph 39 which is a rolled up plea of breach of contract and/or negligence. In my view the paragraph is embarrassing because of its complexity. It rolls up all the previous pleaded agreements and the proposed plea here identified as negligence rather than at common law, all as either cumulative or in the alternative and also rolls up the obligations of the first and the second defendants either cumulatively or as alternatives.
Plea of loss and damage
Paragraph 40 of the proposed substituted statement of claim is the plea of loss and damage which is said to arise in that paragraph by reason of the pleaded breaches of statutory duty, “and/or” breaches of contract “and/or” negligence. In my view, the paragraph is embarrassing because of this rolled up nature. Further, it also fails to the extent it relies on the breach of statutory duties earlier unsatisfactorily pleaded.
The defendants’ specific objections to this paragraph are that it does not properly plead how the loss suffered was the consequence of the defendants’ conduct when the plaintiff itself knew of all the particularised matters, and that, in the absence of such pleading, the defendants cannot take appropriate advice in respect of notices of contribution, third party claims and action pursuant to the Wrongs Act. The plaintiff contends that issues of causation are for trial.
While there is some force in this stance of the plaintiff, I accept the defendants’ contention that proper preparation for trial requires some greater illumination as to how it is said the defendants’ actions or failure to act caused the loss.
The necessary degree of illumination is not provided by the current proposed particulars. Particulars (A) and (B) on their face appear to be speculative in the absence of the plea of any material facts leading to the conclusions there set out. The other particulars are in my view insufficiently related to any acts or omissions of the first or second defendant by date, knowledge, statement as to what should have been done or what was done and should not have been.
Conclusion
The stated intention of the proposed substituted statement of claim is to add the new causes of action of breach of statutory duty and negligence. For the reasons given the paragraphs that seek to do that are embarrassing or do not sufficiently plead the cause of action in question.
As the whole statement of claim has been redrawn with this intent in mind, I do not consider it appropriate to grant leave in respect of some paragraphs but not others. I will refuse leave in respect of the whole of the proposed substituted statement of claim.
Subject to the stay on the taking of a step against the plaintiff now in administration, I will hear the parties if required as to costs.
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