WICKSTEAD v BROWNE [1992] NSWCA 272

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URJ UNREPORTED JUDGMENTSurjBC9203970nsw

WICKSTEAD v BROWNEWICKSTEAD v BROWNE

nswcaSupreme Court of New South Wales — Court of Appeal Kirby P, Handley JA and Cripps JACA 40197/90 27 August, 24 December 199224121992 [1992] NSWCA 2721992nswca272Autoprocess PRACTICE & PROCEDURE — pleading — summary relief — application to dismiss claim by investor against officer of trustee company which lent investor's funds to itself — claim framed in (1) Breach of Companies (NSW) Code; (2) Breach of fiduciary duty; (3) Breach of duty of care in negligence; and (4) Conversion — Master Malpass and Grove J provide summary relief — on appeal — held: (by the Court): (1) The orders made were interlocutory and require leave to appeal which should be granted. Hall v The Nominal Defendant (1966) 117 CLR 423 applied; (2) The principles to be applied are those stated in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; (3) The burden of securing summary relief falls upon the party seeking it; (4) Claims based on s 229 of the Companies (NSW) Code and in conversion were misconceived and were properly terminated; (5) The claims based on s 556 of the Companies (NSW) Code and for breach of the trustee's fiduciary duty ought not to have been dismissed summarily and should proceed to trial; (by Handley and Cripps JJA; Kirby P dissenting): The claim in negligence against the trustee was not viable and should be dismissed. Coroneo v Australian Provincial Assurance Association, Ltd (1935) 35 SR (NSW) 391 (FC) applied. PLEADING — obligation to plead cause of action — duty to plead facts legally relevant — no obligation to plead legal effect of facts — held: Breaches of duty by trustee sufficiently pleaded liability of employee of trustee because he was alleged to have participated with knowledge in breaches of trust and fiduciary duty. The Corporation of the City of Adelaide v The Australasian Performing