Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Limited [2011] FCA 473

Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Limited [2011] FCA 473

Paragraphs 9 and 10 of the defence were misconceived because Part 1A of the Civil Liability Act 2002 (NSW) did not itself create a contributory negligence defence to Perpetual's contract or statutory claims where such a defence was not otherwise available. Paragraphs 15, 17, 18 and 19, and related subparagraphs of paragraph 14, were defective because they did not plead sufficient material facts to establish pleadable claims by Perpetual against the alleged concurrent wrongdoers, including adequate facts as to duties, representations, deceit, identity, acts and causal connection. Those paragraphs were therefore struck out.

Jurisdiction
Australia
Judgment Date
28 February 2011
Procedural Posture
Application to Strike Out Paragraphs of a Defence in Proceedings for Damages or Compensation for Misleading and Deceptive Conduct, Breach of Contract, Damages and an Indemnity / Further Amended Notice of Motion Heard on 28 February 2011; Reasons and Orders Striking Out Parts of the Defence and Directing Service of a Proposed Amended Defence
Outcome
Perpetual's strike out application was granted; specified paragraphs of Paladin's defence were struck out, directions were made for a proposed amended defence and possible further amendment by Perpetual, and Paladin was ordered to pay Perpetual's costs of the application.
Legal Topics
['misleading or Deceptive Conduct' 'contributory Negligence' 'apportionable Claims' 'concurrent Wrongdoers' 'strike Out of Pleadings' 'securitised Mortgage Lending' 'forged Loan and Mortgage Documents']
['corporations Law' 'negligence' 'contract Law' 'fair Trading' 'civil Procedure' 'proportionate Liability'] ['misleading or Deceptive Conduct' 'contributory Negligence' 'apportionable Claims' 'concurrent Wrongdoers' 'strike Out of Pleadings' 'securitised Mortgage Lending' 'forged Loan and Mortgage Documents']

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Procedural Posture

Application to Strike Out Paragraphs of a Defence in Proceedings for Damages or Compensation for Misleading and Deceptive Conduct, Breach of Contract, Damages and an Indemnity / Further Amended Notice of Motion Heard on 28 February 2011; Reasons and Orders Striking Out Parts of the Defence and Directing Service of a Proposed Amended Defence

Legal Issues

  1. 1 ["Whether Part 1A of the Civil Liability Act 2002 (NSW) made available a contributory negligence defence to Perpetual's claims regardless of whether the claims were brought in tort, contract, under statute or otherwise." "Whether Paladin's pleading of concurrent wrongdoers under Part 4 of the Civil Liability Act 2002 (NSW) stated sufficient material facts to support a proportionate liability defence." 'Whether Paladin should be permitted to replead the struck out allegations.']

Ratio Decidendi

Paragraphs 9 and 10 of the defence were misconceived because Part 1A of the Civil Liability Act 2002 (NSW) did not itself create a contributory negligence defence to Perpetual's contract or statutory claims where such a defence was not otherwise available. Paragraphs 15, 17, 18 and 19, and related subparagraphs of paragraph 14, were defective because they did not plead sufficient material facts to establish pleadable claims by Perpetual against the alleged concurrent wrongdoers, including adequate facts as to duties, representations, deceit, identity, acts and causal connection. Those paragraphs were therefore struck out.

Court Disposition

Perpetual's strike out application was granted; specified paragraphs of Paladin's defence were struck out, directions were made for a proposed amended defence and possible further amendment by Perpetual, and Paladin was ordered to pay Perpetual's costs of the application.

Orders

  • ['Paragraphs 9, 10, 14(a), 14(c), 14(d), 14(f), 15, 17, 18 and 19 of the defence to the further amended statement of claim, filed on 7 February 2011, be struck out.' 'The first defendant serve its proposed amended defence on the plaintiff on or before 28 March 2011.' 'The plaintiff be granted leave to amend the...