Karl Suleman Enterprizes v George [2003] NSWSC 544

Karl Suleman Enterprizes v George [2003] NSWSC 544

The second and third plaintiffs pleaded no facts giving them, as liquidators or receivers, a cause of action against the fifth defendant, and receivers could not on the existing orders sue in their own names. The first plaintiff's existing pleading sought recovery by a company that itself pleaded it conducted an illegal and fraudulent scheme from an agent engaged in that scheme, without pleading that investors' moneys were held on trust; on that pleading, the Barnes v Addy, unjust enrichment, money had and received and related claims could not succeed because of illegality and lack of clean hands. However, because a properly pleaded trust-based claim might be arguable, the first...

Jurisdiction
Australia
Judgment Date
20 June 2003
Procedural Posture
Application by Fifth Defendant to Strike Out or Dismiss Proceedings Against Him / Notice of Motion in the Equity Division
Outcome
As against the fifth defendant, the claim by the second and third plaintiffs was dismissed, and the claim by the first plaintiff was struck out with leave to replead within 28 days.
Legal Topics
['strike Out or Dismissal' 'unregistered Managed Investment Scheme' 'receivers and Liquidators Standing' 'illegality' 'clean Hands' 'barnes V Addy' 'unjust Enrichment' 'money Had and Received']
['practice and Procedure' 'equity' 'corporations Law'] ['strike Out or Dismissal' 'unregistered Managed Investment Scheme' 'receivers and Liquidators Standing' 'illegality' 'clean Hands' 'barnes V Addy' 'unjust Enrichment' 'money Had and Received']

Case Brief

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Procedural Posture

Application by Fifth Defendant to Strike Out or Dismiss Proceedings Against Him / Notice of Motion in the Equity Division

Legal Issues

  1. 1 ['Whether the second and third plaintiffs, as liquidators or receivers, had standing or pleaded facts giving rise to a cause of action against the fifth defendant.' "Whether the first plaintiff's claims against the fifth defendant for knowing assistance, knowing receipt, breach of fiduciary duty, unjust enrichment, money had and received or related relief were doomed to fail because of illegality and lack of clean hands." "Whether the first plaintiff should be allowed to replead a claim alleging that investors' moneys were held on trust."]

Ratio Decidendi

The second and third plaintiffs pleaded no facts giving them, as liquidators or receivers, a cause of action against the fifth defendant, and receivers could not on the existing orders sue in their own names. The first plaintiff's existing pleading sought recovery by a company that itself pleaded it conducted an illegal and fraudulent scheme from an agent engaged in that scheme, without pleading that investors' moneys were held on trust; on that pleading, the Barnes v Addy, unjust enrichment, money had and received and related claims could not succeed because of illegality and lack of clean hands. However, because a properly pleaded trust-based claim might be arguable, the first...

Court Disposition

As against the fifth defendant, the claim by the second and third plaintiffs was dismissed, and the claim by the first plaintiff was struck out with leave to replead within 28 days.

Orders

  • ['Order that the claim of the second and third plaintiffs against the fifth defendant be dismissed.' 'Order that the claim of the first plaintiff against the fifth defendant be struck out with leave to replead that claim within 28 days.' 'Order that in default of such amendment the proceedings against the fifth...