Simpson v RBM and Ors (No 2) [2010] NSWSC 166

Simpson v RBM and Ors (No 2) [2010] NSWSC 166

The draft statement of claim failed to adequately differentiate allegations against individual defendants and required substantial redrafting; leave granted to plaintiff to replead. Plaintiff had pleaded an arguable case for breach of fiduciary duty, undue influence, and negligence against Perpetual and other defendants sufficient to resist strike out at this stage. Application for security for costs by first and second defendants refused as circumstances did not justify such order; making such order would risk stifling plaintiff’s claim.

Parties
Plaintiff: Calandre Julia Theresa Simpson; First Defendant: RBM; Second Defendant: FWH; Fifth Defendant: Perpetual Trustee Company Limited; Sixth Defendant: JH; Seventh Defendant: TH
Jurisdiction
Australia
Judgment Date
15 March 2010
Procedural Posture
Motions Regarding Draft Amended Statement of Claim and Security for Costs / Interlocutory Motion Application to Strike Out Portions of Draft Second Further Amended Statement of Claim and Motion for Security for Costs
Outcome
Strike out applications dismissed; leave granted to file amended statement of claim; application for security for costs dismissed
Legal Topics
Strike Out Applications, Fiduciary Duty, Undue Influence, Duty of Care, Security for Costs
Civil Procedure Equity Trusts Strike Out Applications Fiduciary Duty Undue Influence Duty of Care Security for Costs

Case Brief

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Parties

Calandre Julia Theresa Simpson

Plaintiff

RBM

First Defendant

FWH

Second Defendant

Perpetual Trustee Company Limited

Fifth Defendant

JH

Sixth Defendant

TH

Seventh Defendant

Procedural Posture

Motions Regarding Draft Amended Statement of Claim and Security for Costs / Interlocutory Motion Application to Strike Out Portions of Draft Second Further Amended Statement of Claim and Motion for Security for Costs

Legal Issues

  1. 1 Whether draft statement of claim adequately differentiates conduct of each defendant
  2. 2 Whether causes of action in breach of fiduciary duty, undue influence, and negligence are properly pleaded against trustee company before trust established
  3. 3 Whether security for costs should be ordered against an impecunious plaintiff beneficiary under a discretionary trust

Ratio Decidendi

The draft statement of claim failed to adequately differentiate allegations against individual defendants and required substantial redrafting; leave granted to plaintiff to replead. Plaintiff had pleaded an arguable case for breach of fiduciary duty, undue influence, and negligence against Perpetual and other defendants sufficient to resist strike out at this stage. Application for security for costs by first and second defendants refused as circumstances did not justify such order; making such order would risk stifling plaintiff’s claim.

Court Disposition

Strike out applications dismissed; leave granted to file amended statement of claim; application for security for costs dismissed

Orders

  • Leave granted to plaintiff to file second further amended statement of claim including causes of action raised in draft statement of claim
  • Plaintiff to provide particulars sought as specified in reasons for judgment