Australian Securities and Investments Commission v Cassimatis (No 2) [2013] FCA 1008

Australian Securities and Investments Commission v Cassimatis (No 2) [2013] FCA 1008

Several challenged paragraphs of ASIC’s Further Amended Statement of Claim were found not to require striking out as they provided fair notice of the case and were not embarrassing or deficient in a way warranting summary removal. However, some aspects—for example, paragraphs alleging exposure to s 953B civil proceedings—required additional material facts (such as loss and causation) to be pleaded; these subparagraphs were struck out, but ASIC was granted leave to replead with proper particulars. Further particulars on other challenged pleadings were ordered to be provided to clarify the case, but the statement of claim as a whole was not struck out, as the remaining parts were not...

Parties
Applicant: Australian Securities and Investments Commission; First Respondent: Emmanuel George Cassimatis; Second Respondent: Julie Gladys Cassimatis
Jurisdiction
Australia
Judgment Date
04 October 2013
Procedural Posture
Interlocutory Application (application to Strike Out Statement of Claim) / Post Summary Judgment, Application for Strike Out of Further Amended Statement of Claim
Outcome
Application partly successful; certain paragraphs struck out with leave to replead, further particulars ordered, balance of challenges dismissed; no order as to costs.
Legal Topics
Directors' Duties, Pleadings, Strike Out Applications, Misleading or Inappropriate Financial Advice, Civil Penalties in Corporations Law
Corporations Law Civil Procedure Directors' Duties Pleadings Strike Out Applications Misleading or Inappropriate Financial Advice Civil Penalties in Corporations Law

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Australian Securities and Investments Commission

Applicant

Emmanuel George Cassimatis

First Respondent

Julie Gladys Cassimatis

Second Respondent

Procedural Posture

Interlocutory Application (application to Strike Out Statement of Claim) / Post Summary Judgment, Application for Strike Out of Further Amended Statement of Claim

Legal Issues

  1. 1 Whether paragraphs of ASIC's Further Amended Statement of Claim should be struck out under r 16.21 of the Federal Court Rules 2011; specifically, whether pleadings fail to disclose reasonable causes of action, are embarrassing, lack material facts, or require further particulars.
  2. 2 Whether, in pleading contraventions of s 180(1) by directors for exposing Storm to risk of adverse legal consequences, ASIC sufficiently pleaded the risk of civil proceedings when not all elements (including loss) were alleged.
  3. 3 Whether ASIC's pleadings about inappropriate advice, reasonable investigation, risk exposures, and loss satisfy procedural and substantive pleading requirements.

Ratio Decidendi

Several challenged paragraphs of ASIC’s Further Amended Statement of Claim were found not to require striking out as they provided fair notice of the case and were not embarrassing or deficient in a way warranting summary removal. However, some aspects—for example, paragraphs alleging exposure to s 953B civil proceedings—required additional material facts (such as loss and causation) to be pleaded; these subparagraphs were struck out, but ASIC was granted leave to replead with proper particulars. Further particulars on other challenged pleadings were ordered to be provided to clarify the case, but the statement of claim as a whole was not struck out, as the remaining parts were not...

Court Disposition

Application partly successful; certain paragraphs struck out with leave to replead, further particulars ordered, balance of challenges dismissed; no order as to costs.

Orders

  • Subparagraphs 1994(b)(iii) and 2228(b)(iii) struck out; ASIC given leave to replead these aspects if it wishes.
  • Subparagraphs 1993(h)(i) to (iii) struck out; ASIC to provide particulars of essential components of the alternative investment strategy.