James Shipley and Patricia Shipley v Masu Financial Management Pty Ltd [2008] NSWSC 554

James Shipley and Patricia Shipley v Masu Financial Management Pty Ltd [2008] NSWSC 554

Pars 15(c) to (q) of the Second Further Amended Statement of Claim do not sufficiently plead breach of s 945A and are struck out, but plaintiffs are granted leave to replead. The plaintiffs may amend their statement of claim to plead breach of contract, and the statutory presumption under s 12BC(4) is validly invoked based on averment in the pleading.

Jurisdiction
Australia
Judgment Date
21 May 2008
Procedural Posture
Civil / Interlocutory Application and Amendments to Pleadings
Outcome
Interlocutory orders; strike out of some pleadings; leave to replead and amend; costs orders
Legal Topics
['pleading' 'application to Strike Out' 'civil Procedure Act 2005 (nsw) S 56(2)' 'corporations Act 2001 (cth) S 945 A' 'australian Securities and Investments Commission Act 2001 (cth) S 12 Bc(4)' 'product Disclosure Statement' 'breach of Contract']
['practice and Procedure' 'corporations Law'] ['pleading' 'application to Strike Out' 'civil Procedure Act 2005 (nsw) S 56(2)' 'corporations Act 2001 (cth) S 945 A' 'australian Securities and Investments Commission Act 2001 (cth) S 12 Bc(4)' 'product Disclosure Statement' 'breach of Contract']

Case Brief

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Procedural Posture

Civil / Interlocutory Application and Amendments to Pleadings

Legal Issues

  1. 1 ['Whether the pleadings in the Second Further Amended Statement of Claim (pars 15(c) to (q)) sufficiently particularise breach of s 945A of the Corporations Act 2001 (Cth)' 'Whether certain paragraphs should be struck out for lack of cause of action or clarity' 'Whether plaintiffs are entitled to presumptions under s 12BC(4) of the Australian Securities and Investments Commission Act 2001 (Cth)' 'Sufficiency of pleading regarding product disclosure statement obligations' 'Whether leave should be granted for further amendment to claim breach of contract']

Ratio Decidendi

Pars 15(c) to (q) of the Second Further Amended Statement of Claim do not sufficiently plead breach of s 945A and are struck out, but plaintiffs are granted leave to replead. The plaintiffs may amend their statement of claim to plead breach of contract, and the statutory presumption under s 12BC(4) is validly invoked based on averment in the pleading.

Court Disposition

Interlocutory orders; strike out of some pleadings; leave to replead and amend; costs orders

Orders

  • ['Pars 15(c) to (q) of the Second Further Amended Statement of Claim are struck out.' 'Plaintiffs have leave to replead those particulars within 14 days.' 'Paragraphs 1 and 2 of the Amended Interlocutory Process are dismissed.' 'Plaintiffs have leave to file a third amended statement of claim containing, with...