National Mutual Property Services (Australia) Pty Ltd & Ors v Citibank Savings Ltd & Ors (No 1) [1995] FCA 874

National Mutual Property Services (Australia) Pty Ltd & Ors v Citibank Savings Ltd & Ors (No 1) [1995] FCA 874

The assignments of causes of action in tort and under relevant statutes by the investors to the National Mutual companies were invalid as they are not supported by a genuine commercial interest or ancillary to a proprietary right. The claims by the investors who had already been fully compensated cannot proceed, as this would constitute double satisfaction. The pleadings alleging Citibank's vicarious liability and direct negligence lack sufficient material facts and are defective; relevant paragraphs are to be struck out but applicants are granted leave to re-plead.

Parties
First Applicant: National Mutual Property Services (Australia) Pty Ltd; Second Applicant: National Mutual Assets Management Limited; Third Applicant: The National Mutual Life Association of Australasia Limited; Fourth Applicants: The persons listed in Schedule 1 to the Amended Statement of Claim; First Respondent: Citibank Savings Limited; Second Respondent: Lance Kelly Financial Management Pty Limited; Third Respondent: Lance Kelly; Fourth Respondent: Dennis Jones & Company Pty Limited; Fifth Respondent: Dennis Jones
Jurisdiction
Australia
Judgment Date
01 November 1995
Procedural Posture
Practice and Procedure / Strike Out and Joinder / Interlocutory (ruling on Strike Out and Joinder Motions)
Outcome
Partial success for the respondents on strike-out; applicants given leave to re-plead; reserved costs.
Legal Topics
Joinder of Parties, Assignment of Causes of Action, Double Satisfaction Rule, Vicarious Liability, Pleading Requirements, Contribution and Indemnity
Practice and Procedure Tort Agency Statutory Interpretation Joinder of Parties Assignment of Causes of Action Double Satisfaction Rule Vicarious Liability +2 more

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Parties

National Mutual Property Services (Australia) Pty Ltd

First Applicant

National Mutual Assets Management Limited

Second Applicant

The National Mutual Life Association of Australasia Limited

Third Applicant

The persons listed in Schedule 1 to the Amended Statement of Claim

Fourth Applicants

Citibank Savings Limited

First Respondent

Lance Kelly Financial Management Pty Limited

Second Respondent

Lance Kelly

Third Respondent

Dennis Jones & Company Pty Limited

Fourth Respondent

Dennis Jones

Fifth Respondent

Procedural Posture

Practice and Procedure / Strike Out and Joinder / Interlocutory (ruling on Strike Out and Joinder Motions)

Legal Issues

  1. 1 Whether assignments by investors of tort and statutory causes of action to assignees are valid and enforceable
  2. 2 Whether the claims of a large number of investors were wrongly joined in one proceeding
  3. 3 Whether the insurance group's payment and assignment results in double satisfaction, barring further claims

Ratio Decidendi

The assignments of causes of action in tort and under relevant statutes by the investors to the National Mutual companies were invalid as they are not supported by a genuine commercial interest or ancillary to a proprietary right. The claims by the investors who had already been fully compensated cannot proceed, as this would constitute double satisfaction. The pleadings alleging Citibank's vicarious liability and direct negligence lack sufficient material facts and are defective; relevant paragraphs are to be struck out but applicants are granted leave to re-plead.

Court Disposition

Partial success for the respondents on strike-out; applicants given leave to re-plead; reserved costs.

Orders

  • Paragraphs 116, 122-124, 133-137 of the amended statement of claim to be struck out with leave to re-plead.
  • Proceedings stood over for preparation of short minutes of orders, with parties to submit agreed forms or contend for their own.