Alexander & Anor v Burne & Ors [2013] NSWSC 1953

Alexander & Anor v Burne & Ors [2013] NSWSC 1953

Paragraph 38 was defective because it pleaded that the first to ninth defendants knowingly assisted BDO Group to breach trust duties by causing the sale to Grant Thornton in circumstances of no authority and serious, not excusable breaches, but did not plead the required dishonest and fraudulent design, namely a plan or purpose by the trustee to defraud the trust with knowledge that it was doing so, nor assistance in that plan. Even if seriousness of breach were sufficient, particulars were required. The paragraph was struck out with leave to replead once. The defendants were entitled to costs of the motions, but the tenth defendant's costs were not ordered payable forthwith because the...

Jurisdiction
Australia
Judgment Date
20 December 2013
Procedural Posture
Strike Out Application Concerning Pleadings in Equity Division Proceedings About the Sale or Purported Transfer of an Accounting Practice / Principal Judgment on Defendants' Motions; Part of Statement of Claim to Be Repleaded
Outcome
Part of the Statement of Claim was struck out with leave to replead; leave to amend was granted; plaintiffs ordered to pay the costs of the motions; request for costs payable forthwith refused.
Legal Topics
['pleadings' 'strike Out Application' 'barnes V Addy Knowing Assistance' 'dishonest and Fraudulent Design' 'knowing Receipt' 'inducing Breach of Contract' 'costs']
['practice and Procedure' 'equity' 'trusts' 'fiduciary Duties'] ['pleadings' 'strike Out Application' 'barnes V Addy Knowing Assistance' 'dishonest and Fraudulent Design' 'knowing Receipt' 'inducing Breach of Contract' 'costs']

Case Brief

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Procedural Posture

Strike Out Application Concerning Pleadings in Equity Division Proceedings About the Sale or Purported Transfer of an Accounting Practice / Principal Judgment on Defendants' Motions; Part of Statement of Claim to Be Repleaded

Legal Issues

  1. 1 ['Whether paragraph 38 of the proposed pleading adequately pleaded a Barnes v Addy knowing assistance claim against the first to ninth defendants.' "Whether an allegation that the trustee's breaches were serious and not excusable was sufficient to plead a dishonest and fraudulent design." 'Whether the plaintiffs should be given leave to amend or replead the Statement of Claim.' "Whether the tenth defendant's costs should be payable forthwith under r 47.2(1) of the Uniform Civil Procedure Rules 2005."]

Ratio Decidendi

Paragraph 38 was defective because it pleaded that the first to ninth defendants knowingly assisted BDO Group to breach trust duties by causing the sale to Grant Thornton in circumstances of no authority and serious, not excusable breaches, but did not plead the required dishonest and fraudulent design, namely a plan or purpose by the trustee to defraud the trust with knowledge that it was doing so, nor assistance in that plan. Even if seriousness of breach were sufficient, particulars were required. The paragraph was struck out with leave to replead once. The defendants were entitled to costs of the motions, but the tenth defendant's costs were not ordered payable forthwith because the...

Court Disposition

Part of the Statement of Claim was struck out with leave to replead; leave to amend was granted; plaintiffs ordered to pay the costs of the motions; request for costs payable forthwith refused.

Orders

  • ['Leave to amend the Statement of Claim by deleting paragraph [37] and by substituting new paragraphs [37A] - [37E] as handed up in Court on 13 November, 2013.' 'Order that paragraph [38] be struck out, with leave to replead on one more occasion by no later than 17 February, 2014.' 'Order that the plaintiffs pay the...