Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 721

Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 721

The misrepresentation pleading disclosed no defence because it pleaded concealment without any positive representation and, even if properly pleaded, any inducement to enter employment would not answer claims for breach of contractual, tortious and equitable duties arising from the defendants' alleged conduct. The unclean hands pleading also could not succeed because the particulars concerned the plaintiff's institution and maintenance of the proceedings or alleged misrepresentation, not misconduct having an immediate and necessary relation to the equity sued for, namely holding alleged defaulting fiduciaries to account for exploiting fiduciary positions for personal gain.

Jurisdiction
Australia
Judgment Date
06 August 2009
Procedural Posture
Practice and Procedure; Commercial List Proceeding / Plaintiff's Notice of Motion to Revoke Leave to Amend the Commercial List Response and Strike Out Pleaded Misrepresentation and Unclean Hands Defences
Outcome
Plaintiff's application allowed; the defendants' pleadings alleging misrepresentation and lack of clean hands were struck out.
Legal Topics
['strike Out of Pleadings' 'misrepresentation Defence' 'unclean Hands' 'fiduciary Duties' 'constructive Trust']
['practice and Procedure' 'equity' 'commercial Law'] ['strike Out of Pleadings' 'misrepresentation Defence' 'unclean Hands' 'fiduciary Duties' 'constructive Trust']

Case Brief

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Procedural Posture

Practice and Procedure; Commercial List Proceeding / Plaintiff's Notice of Motion to Revoke Leave to Amend the Commercial List Response and Strike Out Pleaded Misrepresentation and Unclean Hands Defences

Legal Issues

  1. 1 ["Whether the defendants' proposed pleading alleging misrepresentation disclosed a defence to the plaintiff's claims or was embarrassing and unsustainable." "Whether the defendants' proposed pleading alleging that the plaintiff lacked clean hands had an immediate and necessary relation to the equity sued for." 'Whether the impugned defences could possibly succeed on the General Steel test.']

Ratio Decidendi

The misrepresentation pleading disclosed no defence because it pleaded concealment without any positive representation and, even if properly pleaded, any inducement to enter employment would not answer claims for breach of contractual, tortious and equitable duties arising from the defendants' alleged conduct. The unclean hands pleading also could not succeed because the particulars concerned the plaintiff's institution and maintenance of the proceedings or alleged misrepresentation, not misconduct having an immediate and necessary relation to the equity sued for, namely holding alleged defaulting fiduciaries to account for exploiting fiduciary positions for personal gain.

Court Disposition

Plaintiff's application allowed; the defendants' pleadings alleging misrepresentation and lack of clean hands were struck out.

Orders

  • ["The defendants' pleadings alleging misrepresentation and alleging that the plaintiff lacked clean hands are to be struck out."]