Rix v Wells [2013] NSWSC 672

Rix v Wells [2013] NSWSC 672

The claim against the first defendant was dismissed because there was no basis for vicarious liability and the other claims against him were defective. The challenge to the trustees' appointment was an abuse of process because it collaterally attacked Forster J's orders. The claim that insurance money should have been used to reinstate the property was bound to fail because s 66H required the trustees to act according to the wishes of the majority owners, who wished to sell without reinstatement. The conspiracy claim failed because it was not properly particularised and the property was never sold to Mr and Mrs Mahony. However, Mr Rix was given leave to replead only the allegation that...

Jurisdiction
Australia
Judgment Date
24 May 2013
Procedural Posture
Civil Proceedings / Application for Summary Dismissal Under UCPR R 13.4 Or, Alternatively, to Strike Out the Statement of Claim Under UCPR R 14.28
Outcome
The claim against the first defendant was dismissed. The statement of claim was struck out. The plaintiff was granted limited leave to file an amended statement of claim against the second and third defendants concerning alleged failure to protect and preserve the property after fire damage, and was ordered to pay...
Legal Topics
['summary Dismissal' 'strike Out of Pleadings' 'judicial Trustees for Sale' 'collateral Attack on Court Orders' 'vicarious Liability' 'conspiracy']
['civil Procedure' 'trusts' 'property Law'] ['summary Dismissal' 'strike Out of Pleadings' 'judicial Trustees for Sale' 'collateral Attack on Court Orders' 'vicarious Liability' 'conspiracy']

Case Brief

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Procedural Posture

Civil Proceedings / Application for Summary Dismissal Under UCPR R 13.4 Or, Alternatively, to Strike Out the Statement of Claim Under UCPR R 14.28

Legal Issues

  1. 1 ["Whether Mr Rix's proceedings or claims should be dismissed under UCPR r 13.4 as frivolous or vexatious, disclosing no reasonable cause of action, or an abuse of process." 'Whether the statement of claim should be struck out under UCPR r 14.28.' 'Whether the claim challenging the appointment of the trustees was an impermissible collateral attack on orders made by Forster J.' "Whether the trustees' alleged failure to reinstate the property using insurance money was a viable claim in light of s 66H of the Conveyancing Act 1919 (NSW)." 'Whether Mr Rix should be given an opportunity to replead an allegation that the trustees failed to protect and preserve the property after fire damage.' 'Whether the pleaded conspiracy claim disclosed facts capable of supporting the allegation.' 'Whether the first defendant could be vicariously liable for the conduct of the second and third defendants.']

Ratio Decidendi

The claim against the first defendant was dismissed because there was no basis for vicarious liability and the other claims against him were defective. The challenge to the trustees' appointment was an abuse of process because it collaterally attacked Forster J's orders. The claim that insurance money should have been used to reinstate the property was bound to fail because s 66H required the trustees to act according to the wishes of the majority owners, who wished to sell without reinstatement. The conspiracy claim failed because it was not properly particularised and the property was never sold to Mr and Mrs Mahony. However, Mr Rix was given leave to replead only the allegation that...

Court Disposition

The claim against the first defendant was dismissed. The statement of claim was struck out. The plaintiff was granted limited leave to file an amended statement of claim against the second and third defendants concerning alleged failure to protect and preserve the property after fire damage, and was ordered to pay...

Orders

  • ['The claim against the first defendant is dismissed.' 'The statement of claim in its existing form is struck out.' 'Mr Rix is given leave to file an amended statement of claim limited to the allegation that the second and third defendants breached their duties as trustees by failing to take adequate steps to...