Prime Capital Securities Pty Ltd v David Tai Acupuncture Research Centre Pty Limited [2013] NSWSC 725

Prime Capital Securities Pty Ltd v David Tai Acupuncture Research Centre Pty Limited [2013] NSWSC 725

The motion was dismissed because it was not plain and obvious that there was no issue to be tried. The alleged representation concerning the establishment fee was capable of being argued, including as a misrepresentation by silence, because the $550,000 fee did not appear as a figure in the correspondence or loan agreement and required several steps and a calculation to identify. The pleading also sufficiently alleged Mr Scanlon's knowledge and involvement by pleading that he was the relevant actor who procured and carried out the pleaded conduct for Prime, so no further amendment was required.

Jurisdiction
Australia
Judgment Date
29 May 2013
Procedural Posture
Interlocutory Application in Common Law Proceedings / Fifth Cross Defendant's Notice of Motion to Strike Out Parts of the Cross Claim Under UCPR R 13.4 and Challenge Pleadings Under UCPR R 14.28
Outcome
Fifth cross-defendant's motion dismissed.
Legal Topics
['summary Disposal' 'strike Out Application' 'no Reasonable Cause of Action' 'adequacy of Pleading Knowing Involvement' 'representation by Silence' 'loan Agreement Establishment Fee' 'mortgagee Power of Sale' 'interlocutory Costs']
['civil Procedure' 'pleadings' 'costs' 'unconscionable Dealings' 'misleading or Deceptive Conduct' 'financial Services'] ['summary Disposal' 'strike Out Application' 'no Reasonable Cause of Action' 'adequacy of Pleading Knowing Involvement' 'representation by Silence' 'loan Agreement Establishment Fee' 'mortgagee Power of Sale' 'interlocutory Costs']

Case Brief

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Procedural Posture

Interlocutory Application in Common Law Proceedings / Fifth Cross Defendant's Notice of Motion to Strike Out Parts of the Cross Claim Under UCPR R 13.4 and Challenge Pleadings Under UCPR R 14.28

Legal Issues

  1. 1 ['Whether the cross-claim against the fifth cross-defendant disclosed no reasonable cause of action or should be struck out under Uniform Civil Procedure Rules 2005 r 13.4.' 'Whether the pleaded representation that no establishment fee other than the Discount Establishment Fee would be payable was capable of being made out against Prime or Mr Scanlon.' "Whether the pleading adequately alleged Mr Scanlon's knowing involvement in Prime's alleged misleading or deceptive conduct and unconscionable conduct under UCPR r 14.28." 'Whether the cross-claimants and the third and fourth cross-defendants should receive costs of the motion.']

Ratio Decidendi

The motion was dismissed because it was not plain and obvious that there was no issue to be tried. The alleged representation concerning the establishment fee was capable of being argued, including as a misrepresentation by silence, because the $550,000 fee did not appear as a figure in the correspondence or loan agreement and required several steps and a calculation to identify. The pleading also sufficiently alleged Mr Scanlon's knowledge and involvement by pleading that he was the relevant actor who procured and carried out the pleaded conduct for Prime, so no further amendment was required.

Court Disposition

Fifth cross-defendant's motion dismissed.

Orders

  • ["The fifth cross defendant's Notice of Motion is dismissed." "The fifth cross-defendant to pay 75% of the cross-claimants' costs of this motion." "The fifth cross-defendant to pay the third and fourth cross-defendants' costs of this motion." 'Adjourn these proceedings before the registrar in Common Law at 9am on...