Levy v Bablis [2007] NSWSC 565

Levy v Bablis [2007] NSWSC 565

Paragraph 49 and any other paragraph alleging a secret commission were struck out because the pleading did not make clear that no recovery of the secret commission by way of damages was claimed, but the plaintiff was given liberty to replead within 14 days. Paragraph 21(b)(v) of the answers to particulars, and analogous answers, were struck out because they pleaded a proscriptive fiduciary obligation to advise, contrary to the Australian position adopted from Porto that fiduciary duties are limited to negative restraints and do not impose a positive duty of disclosure of that kind.

Jurisdiction
Australia
Judgment Date
29 May 2007
Procedural Posture
Application by the Defendant to Strike Out the Whole or Portions of a Statement of Claim on the Ground That It Is Embarrassing or Vexatious, or Alternatively for Further Particulars / Ex Tempore Judgment
Outcome
Secret commission allegation and proscriptive duty particular struck out with liberty to replead or re-particularise.
Legal Topics
['pleadings and Particulars' 'strike Out Application' 'secret Commission' 'proscriptive Fiduciary Duty' 'disclosure']
['procedure' 'equity' 'fiduciary Duties'] ['pleadings and Particulars' 'strike Out Application' 'secret Commission' 'proscriptive Fiduciary Duty' 'disclosure']

Case Brief

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Procedural Posture

Application by the Defendant to Strike Out the Whole or Portions of a Statement of Claim on the Ground That It Is Embarrassing or Vexatious, or Alternatively for Further Particulars / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether an allegation that the defendant sought to profit by way of an undisclosed commission should be struck out where the pleading did not make clear whether recovery of the commission was claimed as damages.' 'Whether a particular alleging that the defendant should advise the plaintiff not to advance funds other than under a written agreement and with security over real property impermissibly pleaded a proscriptive fiduciary obligation.' 'Whether liberty to replead or re-particularise should be granted.']

Ratio Decidendi

Paragraph 49 and any other paragraph alleging a secret commission were struck out because the pleading did not make clear that no recovery of the secret commission by way of damages was claimed, but the plaintiff was given liberty to replead within 14 days. Paragraph 21(b)(v) of the answers to particulars, and analogous answers, were struck out because they pleaded a proscriptive fiduciary obligation to advise, contrary to the Australian position adopted from Porto that fiduciary duties are limited to negative restraints and do not impose a positive duty of disclosure of that kind.

Court Disposition

Secret commission allegation and proscriptive duty particular struck out with liberty to replead or re-particularise.

Orders

  • ['Paragraph 49 of the statement of claim is struck out.' 'Any other paragraph of the pleading alleging a secret commission is struck out.' 'The plaintiff has liberty to replead within 14 days.' 'Paragraph 21(b)(v) of the answers to particulars is struck out.' 'The ruling applies to analogous answers to particulars.'...