Nazdall Pty Ltd, in the matter of Yowdall Pty Ltd (as trustee for the Yowdall Unit Trust) v Herrmann [2013] FCA 94

Nazdall Pty Ltd, in the matter of Yowdall Pty Ltd (as trustee for the Yowdall Unit Trust) v Herrmann [2013] FCA 94

Allegations of fraud that relate to non-parties, do not affect the rights or interests of parties to the present proceedings, and would not advance the case of any party constitute a false issue. Allowing such allegations would likely cause significant delay, incur unnecessary costs, and waste court resources. The paragraphs pleading the Auleth/WG dispute are therefore struck out under Rule 16.21 as irrelevant and prejudicial.

Parties
Plaintiff: Nazdall Pty Ltd (ACN 009 649 843); First Defendant: Murray John Herrmann; Second Defendant: Chun Yow Pty Ltd (ACN 009 601 423); Third Defendant: Chi Kung Pty Ltd (ACN 081 824 400); Fourth Defendant: Yowdall Pty Ltd (ACN 115 340 433) (as trustee for the Yowdall Unit Trust)
Jurisdiction
Australia
Judgment Date
15 February 2013
Procedural Posture
Commercial Litigation / Interlocutory Applications – Competing Strike Out Applications
Outcome
Strike-out granted of specified paragraphs in points of defence and reply.
Legal Topics
Pleadings, Strike Out Applications, Trustee Duties, Fraud Allegations, Accounting Adjustments
Practice and Procedure Trusts Law Corporations Law Pleadings Strike Out Applications Trustee Duties Fraud Allegations Accounting Adjustments

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Parties

Nazdall Pty Ltd (ACN 009 649 843)

Plaintiff

Murray John Herrmann

First Defendant

Chun Yow Pty Ltd (ACN 009 601 423)

Second Defendant

Chi Kung Pty Ltd (ACN 081 824 400)

Third Defendant

Yowdall Pty Ltd (ACN 115 340 433) (as trustee for the Yowdall Unit Trust)

Fourth Defendant

Procedural Posture

Commercial Litigation / Interlocutory Applications – Competing Strike Out Applications

Legal Issues

  1. 1 Whether allegations of fraud against non-parties should be struck out as false issues
  2. 2 Whether points of claim, defence, and reply constitute 'pleadings' under Rule 16.21 of Federal Court Rules 2011
  3. 3 Whether specific paragraphs in points of defence and reply are ambiguous, irrelevant or likely to cause prejudice or delay

Ratio Decidendi

Allegations of fraud that relate to non-parties, do not affect the rights or interests of parties to the present proceedings, and would not advance the case of any party constitute a false issue. Allowing such allegations would likely cause significant delay, incur unnecessary costs, and waste court resources. The paragraphs pleading the Auleth/WG dispute are therefore struck out under Rule 16.21 as irrelevant and prejudicial.

Court Disposition

Strike-out granted of specified paragraphs in points of defence and reply.

Orders

  • Paragraphs 24 to 31 and the phrase 'in relation to Davies' and WG's fraud as referred to in paragraph 29 above' in particulars to paragraph 34 of the points of defence filed 21 December 2012 are struck out.
  • Paragraph 18 of the points in reply and defence to cross-claim filed 4 February 2013 are struck out.