Sutherland v GHR Accounting (No 3) [2017] NSWSC 373

Sutherland v GHR Accounting (No 3) [2017] NSWSC 373

The Further Amended Statement of Claim pleaded negligent advice to the plaintiff personally but did not plead that he suffered loss separate and distinct from Quadratus' loss; as pleaded, the claim was therefore barred by the reflective loss principle and doomed to failure. However, because the plaintiff was self-represented, impecunious, had suffered illness, and there remained an unresolved dispute about whether his third party mortgage had been called up causing personal loss, the proceedings were not dismissed at this stage; the pleading was struck out and the plaintiff was given an opportunity to file a verified further statement of claim.

Jurisdiction
Australia
Judgment Date
07 April 2017
Procedural Posture
Civil Proceedings; Defendant's Application to Strike Out Statement of Claim and Dismiss Proceedings / Interlocutory Notice of Motion
Outcome
Further Amended Statement of Claim struck out; proceedings not dismissed; plaintiff ordered to pay costs of the proceedings before Button J.
Legal Topics
['summary Dismissal' 'strike Out of Statement of Claim' 'failure to Prosecute With Due Despatch' 'no Reasonable Cause of Action' 'reflective Loss' 'diminution in Value of Shares']
['civil Procedure' 'damages'] ['summary Dismissal' 'strike Out of Statement of Claim' 'failure to Prosecute With Due Despatch' 'no Reasonable Cause of Action' 'reflective Loss' 'diminution in Value of Shares']

Case Brief

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Procedural Posture

Civil Proceedings; Defendant's Application to Strike Out Statement of Claim and Dismiss Proceedings / Interlocutory Notice of Motion

Legal Issues

  1. 1 ["Whether the plaintiff's Further Amended Statement of Claim should be struck out for disclosing no reasonable cause of action." 'Whether the proceedings should be dismissed because the claim was doomed to failure by the prohibition on recovery for reflective loss.' 'Whether the proceedings should be dismissed for want of prosecution or failure to prosecute with due despatch.' "Whether the plaintiff pleaded a loss separate and distinct from Quadratus Pty Limited's loss, including any personal loss from a called-up guarantee or mortgage."]

Ratio Decidendi

The Further Amended Statement of Claim pleaded negligent advice to the plaintiff personally but did not plead that he suffered loss separate and distinct from Quadratus' loss; as pleaded, the claim was therefore barred by the reflective loss principle and doomed to failure. However, because the plaintiff was self-represented, impecunious, had suffered illness, and there remained an unresolved dispute about whether his third party mortgage had been called up causing personal loss, the proceedings were not dismissed at this stage; the pleading was struck out and the plaintiff was given an opportunity to file a verified further statement of claim.

Court Disposition

Further Amended Statement of Claim struck out; proceedings not dismissed; plaintiff ordered to pay costs of the proceedings before Button J.

Orders

  • ['The Further Amended Statement of Claim of the plaintiff that became Exhibit 1 on 31 March 2017 is struck out.' 'The plaintiff must file and serve any further statement of claim upon which he relies by 5 May 2017.' 'Any such statement of claim must be verified on oath by the plaintiff, in accordance with rule 14.24...