Hodder & Associates Pty Ltd v National Mutual Trustees Ltd [1999] FCA 708

Hodder & Associates Pty Ltd v National Mutual Trustees Ltd [1999] FCA 708

The applicants failed to establish reasonable cause to believe they may have a right to relief against the respondent, as required by O 15A r 6(a), because the evidence relied upon amounted only to suspicion, not belief—particularly, only the file note raised questions but did not support a reasonable belief....

Source-derived case information.

Parties
First Applicant: Peter Hodder & Associates Pty Ltd (ACN 065 295 954) (Representing Growers under Seymour Softwoods Trust & Ors); Second Applicant: Ian Robert Hunter (Representing Growers under Seymour Softwoods Trust No 2 & Ors); Third Applicant: Trevor Clauscen (Representing Growers under Seymour Softwoods Trust No 3 & Ors); Fourth Applicant: Arif Fareed (Representing Growers under Seymour Softwoods Trust No 4 & Ors); Respondent: National Mutual Trustees Limited (ACN 004 029 841)
Jurisdiction
Australia
Judgment Date
06 May 1999
Procedural Posture
Application for Preliminary Discovery / Judgment on Application for Preliminary Discovery
Outcome
Application dismissed
Legal Topics
Preliminary Discovery, Trustees' Duties, Misleading or Deceptive Conduct, Federal Court Rules Order 15 a Rule 6, Trade Practices Act 1974 S 52
Civil Procedure Equity and Trusts Preliminary Discovery Trustees' Duties Misleading or Deceptive Conduct Federal Court Rules Order 15 a Rule 6 Trade Practices Act 1974 S 52

Source-derived case record

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Parties

Peter Hodder & Associates Pty Ltd (ACN 065 295 954) (Representing Growers under Seymour Softwoods Trust & Ors)

First Applicant

Ian Robert Hunter (Representing Growers under Seymour Softwoods Trust No 2 & Ors)

Second Applicant

Trevor Clauscen (Representing Growers under Seymour Softwoods Trust No 3 & Ors)

Third Applicant

Arif Fareed (Representing Growers under Seymour Softwoods Trust No 4 & Ors)

Fourth Applicant

National Mutual Trustees Limited (ACN 004 029 841)

Respondent

Procedural Posture

Application for Preliminary Discovery / Judgment on Application for Preliminary Discovery

Legal Issues

  1. 1 Whether there is reasonable cause to believe the applicants may have a right to obtain relief against the respondent under O 15A r 6(a) of the Federal Court Rules.
  2. 2 Whether the applicants made all reasonable inquiries under O 15A r 6(b).
  3. 3 Whether the applicants have sufficient information to decide whether to commence proceedings.

Ratio Decidendi

The applicants failed to establish reasonable cause to believe they may have a right to relief against the respondent, as required by O 15A r 6(a), because the evidence relied upon amounted only to suspicion, not belief—particularly, only the file note raised questions but did not support a reasonable belief. Further, the applicants had not made 'all reasonable inquiries' under O 15A r 6(b) because some documents could have been obtained through proper beneficiary requests. Therefore, the application for preliminary discovery was dismissed.

Court Disposition

Application dismissed

Orders

  • The application for discovery from a prospective respondent, and the motion, notice of which was given on 18 March 1999, be dismissed.
  • The applicants pay 50 per cent of the respondent's costs of and incidental to the application, including reserved costs if any.