Larsen v Lynch [2006] FCA 385

Larsen v Lynch [2006] FCA 385

The negligence, retainer and fiduciary duty claims against the third respondent were not so untenable as to warrant summary termination because it was arguable that, as an incident of the implied duty to carry out the retainer with reasonable care and skill, the solicitor had to obtain instructions directly from the applicants and that the pleaded advice duties could arise. The causation deficiency could be cured by amendment or particulars. However, paragraphs 37 and 38 disclosed no reasonable cause of action because the pleading of knowing involvement in Dultona's future representations did not plead that the third respondent knew of the future representations or knew there were no...

Jurisdiction
Australia
Judgment Date
07 April 2006
Procedural Posture
Application to Strike Out Amended Statement of Claim or Dismiss Claim Against the Third Respondent / Interlocutory Notice of Motion
Outcome
Paragraphs 37 and 38 of the amended statement of claim were struck out; the third respondent's notice of motion was otherwise dismissed; the applicants were granted leave to re-amend.
Legal Topics
['strike Out for No Reasonable Cause of Action' "solicitor's Retainer and Implied Duty of Care" 'self Managed Superannuation Fund Establishment' 'misleading or Deceptive Conduct' 'knowing Involvement in Future Representations']
['practice and Procedure' 'professional Negligence' 'trade Practices' 'superannuation' 'fiduciary Duties'] ['strike Out for No Reasonable Cause of Action' "solicitor's Retainer and Implied Duty of Care" 'self Managed Superannuation Fund Establishment' 'misleading or Deceptive Conduct' 'knowing Involvement in Future Representations']

Case Brief

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Procedural Posture

Application to Strike Out Amended Statement of Claim or Dismiss Claim Against the Third Respondent / Interlocutory Notice of Motion

Legal Issues

  1. 1 ['Whether the amended statement of claim against the third respondent disclosed no reasonable cause of action or was frivolous or vexatious.' 'Whether it was arguable that a solicitor instructed through financial advisers to establish a self managed superannuation fund owed duties to obtain instructions directly from the applicants and give advice about the appropriateness, legal obligations and financial implications of the fund.' 'Whether the causation pleading against the third respondent was so defective that the claim should be struck out.' "Whether the pleading that the third respondent was knowingly concerned in, or party to, Dultona's misleading or deceptive conduct based on future representations disclosed a reasonable cause of action."]

Ratio Decidendi

The negligence, retainer and fiduciary duty claims against the third respondent were not so untenable as to warrant summary termination because it was arguable that, as an incident of the implied duty to carry out the retainer with reasonable care and skill, the solicitor had to obtain instructions directly from the applicants and that the pleaded advice duties could arise. The causation deficiency could be cured by amendment or particulars. However, paragraphs 37 and 38 disclosed no reasonable cause of action because the pleading of knowing involvement in Dultona's future representations did not plead that the third respondent knew of the future representations or knew there were no...

Court Disposition

Paragraphs 37 and 38 of the amended statement of claim were struck out; the third respondent's notice of motion was otherwise dismissed; the applicants were granted leave to re-amend.

Orders

  • ['Paragraph 37 and par 38 of the amended statement of claim are struck out.' "The third respondent's notice of motion dated 20 May 2005 is otherwise dismissed." 'The applicants have leave to re-amend the amended statement of claim.']