James Shipley and Patricia Shipley v Masu Financial Management Pty Limited [2008] NSWSC 252

James Shipley and Patricia Shipley v Masu Financial Management Pty Limited [2008] NSWSC 252

Proceedings may continue as representative under r 7.4 because substantial common issues of law exist, specifically as to the nature of the investments for Corporations Act liability and the applicability of statutory defences. However, the PDS claim (paragraphs 17-24 of the statement of claim) is struck out for failing to adequately plead requisite knowledge and causation. Leave is granted to replead.

Parties
Plaintiffs: James Shipley and Patricia Shipley; Defendant: Masu Financial Management Pty Limited
Jurisdiction
Australia
Judgment Date
03 April 2008
Procedural Posture
Civil / Interlocutory — Applications to Strike Out Pleadings, Representative Proceedings Issues
Outcome
Defendant's application to end representative proceedings dismissed; specified paragraphs of statement of claim (PDS claim) and amended defence struck out; leave to replead granted; costs provisionally ordered in the cause.
Legal Topics
Representative Proceedings, Striking Out Pleadings, Personal Advice Under Corporations Act, Product Disclosure Statements, Contributory Negligence in Statutory Claims
Practice and Procedure Corporations Law Representative Proceedings Striking Out Pleadings Personal Advice Under Corporations Act Product Disclosure Statements Contributory Negligence in Statutory Claims

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Parties

James Shipley and Patricia Shipley

Plaintiffs

Masu Financial Management Pty Limited

Defendant

Procedural Posture

Civil / Interlocutory — Applications to Strike Out Pleadings, Representative Proceedings Issues

Legal Issues

  1. 1 Whether proceedings can be continued as representative proceedings under UCPR r 7.4
  2. 2 Whether paragraphs of the statement of claim disclose a reasonable cause of action (in particular, PDS claim under s 1012A)
  3. 3 Availability of contributory negligence defence to statutory breach claims (ss 945A, 1012A Corporations Act)

Ratio Decidendi

Proceedings may continue as representative under r 7.4 because substantial common issues of law exist, specifically as to the nature of the investments for Corporations Act liability and the applicability of statutory defences. However, the PDS claim (paragraphs 17-24 of the statement of claim) is struck out for failing to adequately plead requisite knowledge and causation. Leave is granted to replead.

Court Disposition

Defendant's application to end representative proceedings dismissed; specified paragraphs of statement of claim (PDS claim) and amended defence struck out; leave to replead granted; costs provisionally ordered in the cause.

Orders

  • Defendant's motion to prevent continuation as a representative proceeding dismissed
  • Paragraphs 17-24 of statement of claim struck out, leave to replead within 21 days