Lawrence Edward Stewart v The Australian and New Zealand Banking Group Limited [2020] NSWSC 1787

Supreme Court New South Wales

Medium Neutral Citation: Lawrence Edward Stewart v The Australian and New Zealand Banking Group Limited [2020] NSWSC 1787 Hearing dates: 16 November 2020 Decision date: 10 December 2020 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: (1) That part of the Summons which claims relief under the Australian Securities and Investments Commission Act 2001 (Cth) is struck out as is the word 'hello' in Prayer 3. (2) The Commercial List Statement is struck out. (3) Any application by the plaintiffs for leave to file an amended Summons and Commercial List Statement is to be made by motion supported by affidavit, which are to be filed and served by 19 February 2021 and to be accompanied by the proposed Amended Summons and Amended Commercial List Statement. The motion is to be made returnable on 5 March 2021, to which date I stand these proceedings over for directions. (4) By 19 February 2021, any party seeking to make submissions on the costs of the present application must serve on the other party a written outline (not exceeding 3 pages) and provide a copy to my Associate. Catchwords: PRACTICE AND PROCEDURE – Practice Note SC Eq 3 – Uniform Civil Procedure Rules 2005 (NSW) r 15.4 – Commercial List – Requirements for a Commercial List Statement – Requirements to be met when alleging fraud or other serious misconduct – Where claim arises out of a transaction more than 30 years ago and which was the subject of a settlement and comprehensive deed of release – Where no relief is sought setting aside the deed – HELD – Commercial List Statement is embarrassing and does not comply with basic requirements and is to be struck out in its entirety. Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Civil Procedure Act 2005 (NSW) Contracts Review Act 1980 (NSW) Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) Limitation Act 1969 (NSW) Practice Note SC Eq 3 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Banque Commerciale S.A., En liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Doggett v Commonwealth Bank of Australia (2015) 47 VR 302 Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 Magill v Magill (2006) 226 CLR 551 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357 Paul Ernest Simmons v NSW Trustee and Guardian [2013] NSWSC 1688 Paul Ernest Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 Simmons v Henwood [2013] NSWCA 184 Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 Swiss Re International SE v David Simpson [2018] NSWSC 233 Ucak v Avante Developments [2007] NSWSC 367 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Westpac Banking Corporation v Billgate Pty Ltd [2013] NSWSC 1304 Category: Procedural and other rulings Parties: Lawrence Edward Stewart - First Plaintiff The Stewart Finance Pty Limited - Second Plaintiff The Australian and New Zealand Banking Group Limited - Defendant Representation: Counsel: P King - Plaintiffs A Shearer with C Rogers - Defendant