Hudson Investments Group Ltd v Atanaskovic [2010] NSWSC 1055

Hudson Investments Group Ltd v Atanaskovic [2010] NSWSC 1055

Leave granted to the plaintiff to file the proposed further amended statement of claim except parts introducing or relating to breach of fiduciary duty, as the fiduciary duty asserted is not one known to law and the corresponding amendment is futile. The amendments concerning further particulars of negligence and breach of retainer are allowed, subject to the defendants' limitation arguments being reserved for trial. The plaintiff is to pay the defendants' costs thrown away by reason of the amendments, including the costs of this notice of motion.

Parties
Plaintiff/applicant: Hudson Investments Group Ltd; First Defendant: John Ljubomir Atanaskovic; Second Defendant: Diana Angela Chang; Third Defendant: Daniel Lee Farrugia; Fourth Defendant: Anthony Geoffrey Hartnell; Fifth Defendant: John Edward Mannix; Sixth Defendant: Mark Stephen Pistilli; Seventh Defendant: Daniel David Simmons
Jurisdiction
Australia
Judgment Date
25 October 2010
Procedural Posture
Notice of Motion (procedural Ruling) / Application for Leave to Amend Statement of Claim
Outcome
Leave to amend partly granted; application for leave to include fiduciary duty claim dismissed as futile; plaintiff to pay costs thrown away.
Legal Topics
Amendment of Pleadings, Solicitor's Duties, Fiduciary Obligations, Negligence, Retainer, Conflict of Interest
Civil Procedure Equity Professional Negligence Amendment of Pleadings Solicitor's Duties Fiduciary Obligations Negligence Retainer +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 17 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Hudson Investments Group Ltd

Plaintiff/applicant

John Ljubomir Atanaskovic

First Defendant

Diana Angela Chang

Second Defendant

Daniel Lee Farrugia

Third Defendant

Anthony Geoffrey Hartnell

Fourth Defendant

John Edward Mannix

Fifth Defendant

Mark Stephen Pistilli

Sixth Defendant

Daniel David Simmons

Seventh Defendant

Procedural Posture

Notice of Motion (procedural Ruling) / Application for Leave to Amend Statement of Claim

Legal Issues

  1. 1 Whether the plaintiff should have leave to amend its statement of claim to add further particulars of negligence and breach of retainer against former solicitors.
  2. 2 Whether an amendment introducing a claim for breach of fiduciary duty against solicitors is futile or sustainable in law.
  3. 3 Whether the proposed amendments would cause actual prejudice to the defendants due to delay.

Ratio Decidendi

Leave granted to the plaintiff to file the proposed further amended statement of claim except parts introducing or relating to breach of fiduciary duty, as the fiduciary duty asserted is not one known to law and the corresponding amendment is futile. The amendments concerning further particulars of negligence and breach of retainer are allowed, subject to the defendants' limitation arguments being reserved for trial. The plaintiff is to pay the defendants' costs thrown away by reason of the amendments, including the costs of this notice of motion.

Court Disposition

Leave to amend partly granted; application for leave to include fiduciary duty claim dismissed as futile; plaintiff to pay costs thrown away.

Orders

  • Grant leave to the Plaintiff to file the proposed Further Amended Statement of Claim but without the following parts: (a) paragraph (b) of the relief claimed; (b) paragraph 12D(e); (c) the words '& breach of fiduciary duty' in the heading before paragraph 29; (d) sub-paragraph (b) of paragraph 29; (e) sub-paragraph...
  • The Defendants' rights to argue that any part of the amended pleading is statute-barred are reserved to the trial.