Maryanne Moise v Permanent Trustee Company Limited [2004] NSWSC 1179

New South Wales Supreme Court

CITATION : Maryanne Moise v Permanent Trustee Company Limited [2004] NSWSC 1179 HEARING DATE(S) : 1/12/04 JUDGMENT DATE : 8 December 2004 JURISDICTION: Equity Division JUDGMENT OF : Brownie AJ DECISION : Motion dismissed.

CATCHWORDS : Pleading - No question of principle PARTIES : Maryanne Moise (Plaintiff) Permanent Trustee Company Limited (Defendant) FILE NUMBER(S) : SC 5314/03 COUNSEL : J Mrsic (Plaintiff) V Heath (Defendant) SOLICITORS : Carroll O'Dea (Plaintiff) Blake Dawson Waldron (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Brownie AJ

Wednesday 8 December 2004

5314/03 Maryanne Moise v Permanent Trustee Company Limited JUDGMENT 1 This action was commenced by summons. The defendant complained that it should have been commenced by statement of claim, and by notice of motion dated 4 June 2004 it sought an order that the plaintiff file a statement of claim. The plaintiff did that on 30 September 2004, so that this part of the motion no longer needs to be considered. However, in the notice of motion the defendant also sought an order under part 13 rule 5 dismissing the summons, as disclosing no cause of action. The parties debated this part of the motion, and also the defendant's claim that the whole or part of the statement of claim now filed should be struck out as disclosing no cause of action. 2 The statement of claim pleads some facts, said to entitle the plaintiff to be paid certain money, payable out of a superannuation fund. The original trustee of that fund was KPMG Peat Marwick Custodians Pty Limited, but the present trustee is Permanent Trustee Company Limited, and it is agreed, at least for present purposes, that it is in the same position as the original trustee. The former trustee procured a policy of life assurance providing amongst other things for the payment of money to the plaintiff if she suffered total and permanent disablement. The terms of the superannuation fund provided for the payment of the same money to the plaintiff if in the opinion of the trustee she was, in substance, suffering from total and permanent disablement. Paragraph 19 of the statement of claim asserts the breach by the defendant of the duty that it (and/or the former trustee) owed to the plaintiff, as trustee. There are 21 alleged breaches of duty arranged by reference to the letters (a) – (u) in the particulars appended to paragraph 19. The defendant says, and I do not understand the plaintiff to deny that sub-paragraphs (a) – (c) of paragraph 19 contain assertions of breaches of duty, but not particulars properly so called, so that the question to be decided now is whether any of the particulars (d) – (u) inclusive can be regarded as supporting the general claim of breach of duty as trustee, expanded by reference to sub-paragraphs (a) – (c), which are in these terms: