O’Brien v Supercheap Security Pty Ltd trading as Supercheap Security Pty Ltd (No 2) [2023] NSWSC 761

O’Brien v Supercheap Security Pty Ltd trading as Supercheap Security Pty Ltd (No 2) [2023] NSWSC 761

Leave to amend was refused because each proposed claim against NAB had no reasonable prospects of success. NAB could not be characterised as Ms O'Brien's agent and was not shown to be unjustly enriched; the pleaded facts at most suggested that NAB should have known or was on enquiry, not actual knowledge or wilful blindness sufficient for knowing assistance; the proposed duty of care remained broad, indeterminate, concerned pure economic loss and lacked relevant vulnerability or reliance; the alleged misleading representations could not be implied from NAB's conduct and Ms O'Brien did not rely on any representation by NAB; and the unconscionable conduct pleading concerned services...

Jurisdiction
Australia
Judgment Date
04 July 2023
Procedural Posture
Equity Commercial List; Procedural Ruling on Application for Leave to Amend Commercial List Statement / Notice of Motion Filed 28 April 2023 Seeking Leave to File an Amended Commercial List Statement After Earlier Summary Dismissal and Strike Out of Claims Against NAB
Outcome
Leave to file the Amended Commercial List Statement refused.
Legal Topics
['leave to Amend Pleadings' 'money Paid Under a Mistake of Fact' 'knowing Assistance in a Dishonest and Fraudulent Design' 'common Law Duty of Care for Pure Economic Loss' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'anti Money Laundering Obligations']
['civil Procedure' 'equity' 'banking and Finance' 'consumer Law' 'negligence'] ['leave to Amend Pleadings' 'money Paid Under a Mistake of Fact' 'knowing Assistance in a Dishonest and Fraudulent Design' 'common Law Duty of Care for Pure Economic Loss' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'anti Money Laundering Obligations']

Case Brief

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Procedural Posture

Equity Commercial List; Procedural Ruling on Application for Leave to Amend Commercial List Statement / Notice of Motion Filed 28 April 2023 Seeking Leave to File an Amended Commercial List Statement After Earlier Summary Dismissal and Strike Out of Claims Against NAB

Legal Issues

  1. 1 ["Whether Ms O'Brien should be granted leave to file the Proposed List Statement against NAB." 'Whether the proposed claim for money paid under a mistake of fact had reasonable prospects of success.' "Whether the proposed knowing assistance claim could be pleaded on the basis of NAB's alleged knowledge." "Whether NAB owed Ms O'Brien the proposed common law duty of care in relation to processing payments." 'Whether the alleged representations by NAB could support a misleading or deceptive conduct claim and alleged reliance.' 'Whether the proposed unconscionable conduct claim was reasonably arguable under the general law, the ASIC Act or the Australian Consumer Law.']

Ratio Decidendi

Leave to amend was refused because each proposed claim against NAB had no reasonable prospects of success. NAB could not be characterised as Ms O'Brien's agent and was not shown to be unjustly enriched; the pleaded facts at most suggested that NAB should have known or was on enquiry, not actual knowledge or wilful blindness sufficient for knowing assistance; the proposed duty of care remained broad, indeterminate, concerned pure economic loss and lacked relevant vulnerability or reliance; the alleged misleading representations could not be implied from NAB's conduct and Ms O'Brien did not rely on any representation by NAB; and the unconscionable conduct pleading concerned services...

Court Disposition

Leave to file the Amended Commercial List Statement refused.

Orders

  • ['Leave to file Amended Commercial List Statement refused.' 'The Court invited submissions as to why the proceedings, as against NAB, should not be dismissed with costs.']