Andrew Hugh Jenner Wily v Nauru Phosphate Royalties Trust [2008] NSWSC 582

Procedural Posture

Appeal From Decision of Associate Justice Dismissing Proceedings Against the Second Defendant Pursuant to UCPR R13.4 / Appeal Dismissed

Legal Issues

1. 1 ["Whether the Associate Justice erred in dismissing the plaintiffs' proceedings against Ernst & Young under UCPR rule 13.4 on the basis that the pleaded case disclosed no reasonable cause of action because of a fundamental deficiency in causation." 'Whether the plaintiffs should have been given an opportunity to replead a case that the Deed would have been made without Ernst & Young being mentioned as a priority creditor.' 'Whether claims for declarations that Ernst & Young was not entitled to payment and had engaged in misleading or deceptive conduct should survive notwithstanding summary dismissal of the damages claim.']

Ratio Decidendi

The appeal was dismissed because the plaintiffs' pleaded causation case was fundamentally flawed: Ernst & Young was not bound by the Deed and had no obligation to give a priority creditor release, and the pleading alleged that Ernst & Young would not accept less than about $560,000 while the liquidator was not prepared to pay that amount. No error was shown in the Associate Justice's summary dismissal, no application to replead had been made below, and the declaratory relief sought lacked utility.

Court Disposition

Appeal dismissed with costs.

Orders

• ['The appeal is dismissed with costs.']