Allstate Life Insurance Company & Ors v. Australia & New Zealand Banking Group Ltd & Ors [1994] FCA 948

Allstate Life Insurance Company & Ors v. Australia & New Zealand Banking Group Ltd & Ors [1994] FCA 948

The paragraphs challenged against Freehills (78-9 and 165-8) raise arguable issues of misleading or deceptive conduct under s 42 Fair Trading Act and negligence, sufficient to resist a strike out. Solicitors’ duties of confidence do not preclude such statutory liability at the strike out stage, and reliance/assumption of responsibility are adequately pleaded for negligence. Disclaimer is a factor but not decisive; matters should proceed to trial.

Parties
Applicants: Allstate Life Insurance Co. & Others; Respondents: Australia & New Zealand Banking Group Limited & Others; 54th Respondent: Freehills (54th Respondent)
Jurisdiction
Australia
Judgment Date
06 December 1994
Procedural Posture
Application (notice of Motion) / Interlocutory (strike Out Application)
Outcome
Notice of Motion dismissed; costs reserved.
Legal Topics
Strike Out Application, Solicitors' Duties, Misleading or Deceptive Conduct, Negligence, Prospectus Liability, Fair Trading Act 1987 (nsw)
Commercial Law Tort Law Statutory Law Strike Out Application Solicitors' Duties Misleading or Deceptive Conduct Negligence Prospectus Liability +1 more

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Parties

Allstate Life Insurance Co. & Others

Applicants

Australia & New Zealand Banking Group Limited & Others

Respondents

Freehills (54th Respondent)

54th Respondent

Procedural Posture

Application (notice of Motion) / Interlocutory (strike Out Application)

Legal Issues

  1. 1 Whether paras. 78-9 and 165-8 of the amended statement of claim against Freehills disclose arguable causes of action for misleading or deceptive conduct and negligence.
  2. 2 Whether a solicitor's duty of confidence negates liability under s 42 Fair Trading Act 1987 (NSW).
  3. 3 Whether Freehills owed the applicants a duty of care in preparing and advising on the prospectus.

Ratio Decidendi

The paragraphs challenged against Freehills (78-9 and 165-8) raise arguable issues of misleading or deceptive conduct under s 42 Fair Trading Act and negligence, sufficient to resist a strike out. Solicitors’ duties of confidence do not preclude such statutory liability at the strike out stage, and reliance/assumption of responsibility are adequately pleaded for negligence. Disclaimer is a factor but not decisive; matters should proceed to trial.

Court Disposition

Notice of Motion dismissed; costs reserved.

Orders

  • Notice of motion dismissed.
  • Costs reserved.