Mahommed v Unicomb (No 2) [2018] NSWSC 1450

Mahommed v Unicomb (No 2) [2018] NSWSC 1450

Greenhills' complaint that paragraphs 15 to 20 of the further amended statement of claim should be struck out was rejected because, read as a whole, the pleading sufficiently alleged material facts supporting Loire's equitable claims against Greenhills, including the foundation for Mr Unicomb's fiduciary duties, the circumstances in which Greenhills allegedly received and held Loire's funds, Greenhills' alleged knowledge through Mr Unicomb, and the alleged misuse of the funds. The proposed amendments relating directly to those allegations were not so inadequate as to warrant refusal, although any order granting leave was deferred pending a final draft pleading and the costs issue was...

Jurisdiction
Australia
Judgment Date
25 September 2018
Procedural Posture
Procedural and Other Rulings; Equity / Supplementary Ruling Following the Primary Judgment on the Defendants' Notice of Motion to Strike Out and Dismiss the Further Amended Statement of Claim and the Plaintiffs' Notice of Motion Seeking Leave to File a Second Further Amended Statement of Claim.
Outcome
Greenhills' strike-out challenge to paragraphs 15 to 20 of the further amended statement of claim was rejected; limited amendments relating to those allegations were accepted in principle, but formal leave and costs were deferred pending a final draft pleading and further information about the state of the proceedings.
Legal Topics
['pleadings and Particulars' 'strike Out Application' 'leave to Amend Pleadings' 'fiduciary Duties' 'express Trust' 'resulting Trust' 'constructive Trust' 'equitable Compensation']
['practice and Procedure' 'equity'] ['pleadings and Particulars' 'strike Out Application' 'leave to Amend Pleadings' 'fiduciary Duties' 'express Trust' 'resulting Trust' 'constructive Trust' 'equitable Compensation']

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Procedural Posture

Procedural and Other Rulings; Equity / Supplementary Ruling Following the Primary Judgment on the Defendants' Notice of Motion to Strike Out and Dismiss the Further Amended Statement of Claim and the Plaintiffs' Notice of Motion Seeking Leave to File a Second Further Amended Statement of Claim.

Legal Issues

  1. 1 ['Whether the claim by Loire Consultants Pty Ltd against Greenhills Securities Pty Ltd in paragraphs 15 to 20 of the further amended statement of claim was defectively pleaded and should be struck out.' "Whether the allegations concerning fiduciary duty, dishonesty or fraud, express trust, resulting trust or constructive trust, and Greenhills' knowledge or assistance were pleaded with sufficient material facts and particulars." 'Whether proposed amendments in the draft second further amended statement of claim relating to paragraphs 16 to 19 should be permitted.' 'Whether costs orders should be made at this stage.']

Ratio Decidendi

Greenhills' complaint that paragraphs 15 to 20 of the further amended statement of claim should be struck out was rejected because, read as a whole, the pleading sufficiently alleged material facts supporting Loire's equitable claims against Greenhills, including the foundation for Mr Unicomb's fiduciary duties, the circumstances in which Greenhills allegedly received and held Loire's funds, Greenhills' alleged knowledge through Mr Unicomb, and the alleged misuse of the funds. The proposed amendments relating directly to those allegations were not so inadequate as to warrant refusal, although any order granting leave was deferred pending a final draft pleading and the costs issue was...

Court Disposition

Greenhills' strike-out challenge to paragraphs 15 to 20 of the further amended statement of claim was rejected; limited amendments relating to those allegations were accepted in principle, but formal leave and costs were deferred pending a final draft pleading and further information about the state of the proceedings.

Orders

  • ['The plaintiffs are to submit to Greenhills and to the Court a final draft of the second further amended statement of claim that includes all permitted amendments and any further amendments consistent with the primary judgment before an order granting leave is made.' 'The Court deferred ruling on costs orders for...