Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920

Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920

The statement of claim is struck out as against the bank respondents because it does not properly plead the requisite knowledge for statutory or knowing receipt claims; the claim based on substantial shareholder notice filings as a declaration of trust is bad at law and struck out; however, the applicants are given leave to replead after discovery, as there is a sufficient basis to allow such discovery to inform the pleading.

Parties
Applicant: Imobilari Pty Limited; First Respondent: Opes Prime Stockbroking Limited (in liquidation) (Receivers & Managers Appointed); Second Respondent: Australia and New Zealand Banking Group Limited; Third Respondent: ANZ Nominees Limited; Fourth Respondent: Merrill Lynch International (Australia) Ltd
Jurisdiction
Australia
Judgment Date
17 December 2008
Procedural Posture
Class Action (representative Proceeding) / Strike Out Motion Decision/preliminary Procedural Ruling
Outcome
Statement of claim struck out with leave to replead; trust claim (substantial shareholder notice) struck out; directions for draft orders and cost submissions to be filed; further orders to be made after hearing parties.
Legal Topics
Strike Out and Summary Judgment, Constructive Trusts, Barnes V Addy Liability, Knowledge and Scienter, Securities Lending, Misleading or Deceptive Conduct
Practice and Procedure Equity and Trusts Corporations Law Strike Out and Summary Judgment Constructive Trusts Barnes V Addy Liability Knowledge and Scienter Securities Lending +1 more

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Parties

Imobilari Pty Limited

Applicant

Opes Prime Stockbroking Limited (in liquidation) (Receivers & Managers Appointed)

First Respondent

Australia and New Zealand Banking Group Limited

Second Respondent

ANZ Nominees Limited

Third Respondent

Merrill Lynch International (Australia) Ltd

Fourth Respondent

Procedural Posture

Class Action (representative Proceeding) / Strike Out Motion Decision/preliminary Procedural Ruling

Legal Issues

  1. 1 What is the proper test for strike-out versus summary judgment under Federal Court Rules and s 31A of the Federal Court of Australia Act 1976 (Cth)?
  2. 2 Whether the pleading discloses a viable cause of action against the bank respondents based on constructive trust/knowing receipt/Barnes v Addy
  3. 3 Whether notice filings under Corporations Act ss 671B/672B can amount to declarations of trust

Ratio Decidendi

The statement of claim is struck out as against the bank respondents because it does not properly plead the requisite knowledge for statutory or knowing receipt claims; the claim based on substantial shareholder notice filings as a declaration of trust is bad at law and struck out; however, the applicants are given leave to replead after discovery, as there is a sufficient basis to allow such discovery to inform the pleading.

Court Disposition

Statement of claim struck out with leave to replead; trust claim (substantial shareholder notice) struck out; directions for draft orders and cost submissions to be filed; further orders to be made after hearing parties.

Orders

  • The second and fourth respondents to bring in short minutes of orders to give effect to these reasons by 4.15 pm on 23 December 2008.
  • Any submission by any party as to costs should be in writing and filed and served by 4.15 pm on 23 December 2008.