Sutherland v GHR Accounting and Anor - [2015] NSWSC 1946

Supreme Court

New South Wales

Medium Neutral Citation: Sutherland v GHR Accounting and Anor [2015] NSWSC 1946
Hearing dates: 23 November 2015
Decision date: 18 December 2015
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) The proceedings brought by the plaintiff against the second defendant, Macquarie Bank, are dismissed pursuant to UCPR r 13.4.

(2) The Statement of Claim filed by the plaintiff as against the first defendant on 13 August 2015 is struck out pursuant to UCPR r 14.28.

(3) Leave is granted to the plaintiff to file an Amended Statement of Claim to re-plead against the first defendant, GHR Accounting, in relation to alleged breach of contract and/or alleged negligence or negligent misstatement.
(4) I grant leave to the first and second defendants to lodge with my Associate any written submission on costs. The plaintiff is to lodge with my Associate any written submissions in reply by 4pm Friday 12 February 2016 with copies to be served on the defendants’ solicitors.
Catchwords: CIVIL PROCEDURE – Application for summary dismissal (pursuant to UCPR 13.4) or strike out of Statement of Claim (pursuant to UCPR 14.28) – whether Statement of Claim disclosed reasonable cause of action against either first defendant (an accounting firm) or second defendant (an investment bank) in relation to certain property and loan transactions – argued by defendants that they could not identify the case they were to answer – pleadings were defective and lacked specificity – whether losses of plaintiff were reflective losses of a company of which he was a shareholder – proceedings against Bank untenable because no specific relationship pleaded or advice pleaded as having been given by the Bank and no loss claimed to which the reflective loss principle did not apply – proceedings against Bank dismissed – pleadings against accountants embarrassing and struck out – leave granted to plaintiff to replead against accountants
Legislation Cited: Real Property Act 1900
Uniform Civil procedure Rules, r 13.4, r 14.28
Cases Cited: Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Esanda Finance Corporation limited v Peat Marwick Hungerfords (1995-1997) 188 CLR 241
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
McGuirk v The University of New South Wales [2009] NSWSC 1424
Preston v Star City Pty Limited [1999] NSWSC 1273 Mutual Life and Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628
Spencer v the Commonwealth (2010) 241 CLR 118
VPlus Holdings Pty Ltd v Bank of Western Australia Ltd [2012] NSWSC 1327
Category: Principal judgment
Parties: Richard Craig Sutherland (Plaintiff)
GHR Accounting (First Defendant)
Macquarie Bank Limited (Second Defendant)
Representation:
Counsel:
In person (Plaintiff)
CJ Peadon (First Defendant)
A Zahra (Second Defendant)
Solicitors:
Unrepresented (Plaintiff)
Colin Biggers & Paisley Pty Ltd (First Defendant)
Garland Hawthorn Brahe Solicitors (Second Defendant)

File Number(s): 2015/236599

Judgment

These proceedings were commenced by the plaintiff, Richard Sutherland, on 13 August 2015 by way of Statement of Claim. The first and second defendants are an accounting firm, named as…

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.

Keep reading for free

Create a free CaseChat account to read Sutherland v GHR Accounting and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 1946
Decision Date: 18 December 2015

CaseChat Overview and Summary

In Sutherland v GHR Accounting and Anor, the plaintiff, Mr Sutherland, brought claims against the first defendant, an accounting firm, and the second defendant, an investment bank, concerning certain property and loan transactions. The defendants applied for summary dismissal or, alternatively, a strike out of the plaintiff's Statement of Claim, arguing that the pleadings were defective and lacked specificity, and that the claims did not disclose a reasonable cause of action. The legal issues before the court were whether the plaintiff's claims against both defendants were sufficiently specific and whether the claims against the bank were reflective of the losses of a company in which the plaintiff was a shareholder.

The court found that the claims against the bank were untenable because the plaintiff had not pleaded a specific relationship with the bank or any advice that the bank had given him. Additionally, the plaintiff's losses were reflective of the losses of a company of which he was a shareholder, and the reflective loss principle applied. Consequently, the court dismissed the claims against the bank. Regarding the accounting firm, the court found the pleadings embarrassing and struck them out. However, the court granted the plaintiff leave to replead against the accounting firm.

Orders