Sotos v Soulos [2008] NSWSC 708

Sotos v Soulos [2008] NSWSC 708

There are arguable issues of fact regarding the existence and breach of fiduciary and common law duties by the cross defendant; the cross claim is not so clearly untenable or embarrassing as to warrant summary dismissal or striking out; matters should proceed to trial for determination on the evidence.

Jurisdiction
Australia
Judgment Date
22 July 2008
Procedural Posture
Civil / Interlocutory Application—motion to Dismiss or Strike Out Cross Claim
Outcome
Motion dismissed; cross claim allowed to proceed to trial; costs awarded to plaintiff/cross claimant; matter listed for status conference.
Legal Topics
['summary Judgment' 'strike Out Pleadings' 'fiduciary Duty' 'professional Negligence (accountant)']
['civil Procedure' 'negligence' 'equity'] ['summary Judgment' 'strike Out Pleadings' 'fiduciary Duty' 'professional Negligence (accountant)']

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Procedural Posture

Civil / Interlocutory Application—motion to Dismiss or Strike Out Cross Claim

Legal Issues

  1. 1 ['Whether the cross claim should be dismissed or struck out due to internal inconsistency or lack of reasonable cause of action' 'Whether a fiduciary duty existed between the cross defendant (accountant) and cross claimant (client)' 'Whether the cross defendant owed and breached a duty of care in preparing a waiver document' 'Whether summary judgment or strike out is appropriate in light of factual disputes']

Ratio Decidendi

There are arguable issues of fact regarding the existence and breach of fiduciary and common law duties by the cross defendant; the cross claim is not so clearly untenable or embarrassing as to warrant summary dismissal or striking out; matters should proceed to trial for determination on the evidence.

Court Disposition

Motion dismissed; cross claim allowed to proceed to trial; costs awarded to plaintiff/cross claimant; matter listed for status conference.

Orders

  • ['The notice of motion filed 5 June 2008 is dismissed.' "The cross defendant is to pay the plaintiff's costs as agreed or assessed." 'The matter is to be listed for a status conference on 31 July 2008 before the Registrar at 9.00 am.']