Posselt, Allan John & Anor v Wolfenden, Kenneth James & Ors [1996] FCA 2

Posselt, Allan John & Anor v Wolfenden, Kenneth James & Ors [1996] FCA 2

The fourth respondent did not establish that the applicants' pleaded case was so clearly untenable that it could not possibly succeed, nor that the statement of claim was embarrassing or an abuse of process. The pleadings alleged facts sufficient to make arguable the applicants' status, the Accountants' agency for the fourth respondent, involvement of the fourth respondent in the alleged fiduciary breach, and damage flowing from the abandonment of the Prudential Policies and the Scheme. Any lack of particularity could be addressed by particulars rather than strike-out.

Jurisdiction
Australia
Judgment Date
03 January 1996
Procedural Posture
Civil Proceeding Concerning Pleadings and Strike Out of a Statement of Claim / Interlocutory Motion by the Fourth Respondent to Strike Out the Statement of Claim or Parts of It
Outcome
Paragraphs 1 and 2 of the fourth respondent's motion dated 18 December 1995 were dismissed; directions were maintained; the fifth paragraph of the motion was stood over.
Legal Topics
['pleadings' 'strike Out Application' 'embarrassing Pleading' 'abuse of Process' 'agency' 'fiduciary Duty' 'misleading and Deceptive Conduct' 'particulars of Damage']
['civil Procedure' 'trade Practices' 'equity' 'negligence'] ['pleadings' 'strike Out Application' 'embarrassing Pleading' 'abuse of Process' 'agency' 'fiduciary Duty' 'misleading and Deceptive Conduct' 'particulars of Damage']

Case Brief

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Procedural Posture

Civil Proceeding Concerning Pleadings and Strike Out of a Statement of Claim / Interlocutory Motion by the Fourth Respondent to Strike Out the Statement of Claim or Parts of It

Legal Issues

  1. 1 ['Whether the statement of claim as against the fourth respondent should be struck out as vexatious, prejudicial, embarrassing, disclosing no reasonable or probable cause of action, or as an abuse of process.' 'Whether the applicants pleaded an interest or status sufficient to maintain a cause of action.' 'Whether it was arguable that the Accountants acted as agents of the fourth respondent so that breaches alleged against them could found a claim against the fourth respondent.' 'Whether the pleading of agency was embarrassing for failure to plead material facts.' 'Whether the pleaded equitable or fiduciary duty claim could arguably involve the fourth respondent.' 'Whether the pleading sufficiently identified damage or could be cured by particulars.']

Ratio Decidendi

The fourth respondent did not establish that the applicants' pleaded case was so clearly untenable that it could not possibly succeed, nor that the statement of claim was embarrassing or an abuse of process. The pleadings alleged facts sufficient to make arguable the applicants' status, the Accountants' agency for the fourth respondent, involvement of the fourth respondent in the alleged fiduciary breach, and damage flowing from the abandonment of the Prudential Policies and the Scheme. Any lack of particularity could be addressed by particulars rather than strike-out.

Court Disposition

Paragraphs 1 and 2 of the fourth respondent's motion dated 18 December 1995 were dismissed; directions were maintained; the fifth paragraph of the motion was stood over.

Orders

  • ["Paragraphs 1 and 2 of the fourth respondent's motion dated 18 December 1995 be dismissed." "The fourth respondent pay the applicants' costs of an incidental to the hearing of paragraphs 1 and 2 of the fourth respondent's motion dated 18 December 1995." 'The directions made on 15 December 1995 be maintained.' "The...