April 11, 2016
In Cohen & Ors v Amberley Corporation Australia Pty Ltd  VSC 140 Derham AsJ considered an application for discovery in relation to the administration by a trustee of a discretionary trust. What started out as a consideration of the plaintiff’s application concluded with part of the statement of claim being struck out. It is a very useful decision in the practical side of pleading breach of trust, which can be quite complicated.
The plaintiffs are the children of Harold Campbell-Pretty (‘Harold’) and Kerry Ainley Watkins (‘Kerry’). After 2 divorces he ultimately married Krystyna Campbell-Pretty (‘Krystyna’) . On 27 March 1975, the Campbell-Pretty Family Trust was established by a deed of settlement (‘Trust’ or ‘Trust Deed’). Under its terms Harold was specified as the Appointor and each of the plaintiffs were specified as Primary Beneficiaries .
There were two variations to the Trust Deed:
- on 29 December 1987 the defendant was appointed Trustee in place of the previous Trustee. From about December 1986, Krystyna and Harold were the directors of the defendant. On 29 December 1987, Krystyna was appointed as an additional member of the class of General Beneficiaries under the Trust ;
- on 8 July 2005, the defendant as Trustee of the Trust purported to exercise a power given by clause 20 of the Trust Deed declaring that the plaintiffs were ‘deleted’ as Primary Beneficiaries under the Trust. Harold, as Appointor, consented to the variation .
Harold died on 25 May 2014. Krystyna was his executrix. The plaintiffs received nothing.
Breach of trust claim
The plaintiffs pleaded Read the rest of this entry »
April 12, 2012
Today Justice Beach, in Barrow v McLernon & Anor  VSC 134 handed down a very interesting and useful decision regarding discovery and the operation of section 27 of the Civil Procedure Act. It is an appeal from a decision of an Associate Justice.
The Plaintiff is suing Hugh McLernon and IMF (Australia) Limited for defamation arising out of the publication on 30 May 2011 of an email and two pdf attachments . The Plaintiff wishes to use documents discovered in this proceeding in support of issuing other proceedings, also a cause of action in defamation . Five documents discovered constitute Read the rest of this entry »
June 6, 2011
On 3 June Hargrave J made an interim ruling as to the further conduct proceedings in Director of Consumer Affairs Victoria v Scully & Ors (No 2) (Scully). It is an important decision in considering the approach the court should take to civil prosecutions brought by the Director of Consumer affairs under the Fair trading Act.
The proceedings relate to two schemes promoted by Scully and others designed to allow consumers with financial problems to acquire their own home without a deposit or finance from banks or financial institutions in the short term . The Director brought an action under sections 9, 11 and 12 of the Fair Trading Act in the public interest and representing the interests of certain individuals who participated in the schemes. There were no pleadings and Associate Justice Daley dismissed an application to order a statement of claim [10 at footnote 1].
On 10 May 2011 the trial was adjourned, part heard, until 26 July 2011. The court called the parties back because of concerns as to the course the trial was taking. His Honour was concerned that since the proceedings had been issued the nature of the allegations were contained across and originating motion, numbering 50 pages but drawn in broad terms, voluminous affidavit material, running to 11,000 pages over 26 volumes, and written outline of submissions which was at “..a high level of generality” . As a consequence the court was reliant upon the Director and his legal representatives to identify his case, which the did not occur in the first four days of trial . His Honour was quite critical of the assistance provided by the Director (see ) saying “..the Court requires significantly greater assistance from the Director than has been provided to date.”
The court was of the view that pleadings were necessary to define the many issues in the case and avoid possible injustice to the defendants ( – ).
At  the Court cited Mason and Gauldron’s statement in Banque Commerciale SA v Akhil Holdings Ltd that the function of pleadings “..is to Read the rest of this entry »
May 26, 2011
In three rulings relating to group proceedings issued under Part 4 of the Supreme Court Act Forrest J considered an application to regularise proceedings and an application to dismiss on the basis of an abuse of process in Matthews v SPI Electricity Pty Ltd Ruling Nos 1 and, Cohen v State of Victoria & Ors (No 2) and in Matthews v SPI Electricity Pty Ltd Ruling Nos 2 an application for summary judgment and to strike out aspects of the statement of claim.
The claim in Matthews arose out of the Black Saturday bush fires. The firm Oldham Naidoo (“Naidoo”) issued proceedings in the name of a Mr Keane for damages against SPI amongst others. Naidoo did not have instructions from Mr Keanne to issue the proceedings in his name. Keane asked Naidoo to remove him as a plaintiff, something that did not happen for another year. Matthews then replaced Keane as representative plaintiff. After Maurice Blackburn took over conduct of the proceeding it brought Naidoo’s actions to the attention of the court and applied to regularise the proceedings. The defendants resisted the application and sought variously to strike out the claim and obtain summary judgment.
In Cohen Naidoo issued a group proceeding in Dr Cohen’s name without his knowledge. Naidoo sought but failed to find a person to be substituted for Cohen. There had been a substantial history of amendments to the statement of claim. The court considered the application to strike out the proceeding as an abuse of process.
Ruling nos 1
Lack of authority in a solicitor issuing a proceeding – does it render it a nullity
In opposing the application to regularise the proceeding SPI submitted Read the rest of this entry »
April 5, 2010
In Blackman & Ors v Gant & Anor Vickery J considered a very interesting no case application by the Second Defendant. This is a case that has drawn considerable press coverage, including in the Australian and the Age.
FACTS (pars 4 – 11)
The Plaintiffs are the artist Charles Blackman and his trustee, Robert Dickerson. The Second Defendant is Peter Gant, an art dealer. Gant originally supplied three works of art to a Helen Stewart , another art dealer, together with two valuations of the works. She was the former First Defendant. Stewart sold the works to a a Robert Blanche, giving him a copy of the valuations. The evidence is that Blanche relied upon one of the valuations when purchasing the works and used the other for insurance valuation purposes. When, later, Blanche was advised that the works were not authentic he returned them to Stewart who refunded his money. Stewart then returned the works to Gant. The Second Defendant maintains the works are authentic. The issue before Vickery J was confined to the Second Defendant’s no case application.
The Plaintiffs claim, at , that the valuations impliedly represent that the works were authentic and consequently a breach of Read the rest of this entry »
December 21, 2008
The Opes Prime collapse is the gift that keeps on giving, litigation and judicial decision wise at least. Finkelstein J, the judge assigned to the proceeding, has handed down a number of decisions involving the initial insolvency and now the class action. Given the “no quarter” approach that seems to be taken by the parties at this early interlocutory stage more decisions are likely in the future, well before trial. This decision arose out of an application by the respondents to strike out the statement of claim or summarily dismiss the proceeding. Finkelstein J took the opportunity to review the general principles.
Strike out application (paragraphs 4 – 5, 8 & 10).
Features of a strike out application are: Read the rest of this entry »