Levy v Bablis [2007] NSWSC 565

New South Wales Supreme Court

CITATION : Levy v Bablis [2007] NSWSC 565

HEARING DATE(S) : 29/05/07 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 29 May 2007

DECISION : Secret commission allegation and proscriptive duty particular struck out with liberty to replead.

CATCHWORDS : PROCEDURE - Pleadings and Particulars - Whether an allegation of intention to take a separate commission constituting a breach of fiduciary duty with no other relationship to the claim for damages should be struck out - Whether the particularisation of a fiduciary duty as including a proscriptive duty of disclosure should be struck out

Webster v Lampard (1993) 177 CLR 598 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED : P & V Industries Pty Limited & Ors v Porto (2006) 14 VR 1 United Dominions Corporation Ltd v Brian Pty Ltd (1984) 157 CLR 1 Directors, etc of Central Railway Co of Venezuela v Kisch (1867) LR 2 HL 99 Bell v Lever Bros Ltd [1932] AC 161

PARTIES : Julian Emmanuel Levy - Plaintiff Peter Bablis - Defendant

FILE NUMBER(S) : SC 6289/06

COUNSEL : Mr J Clifton - Plaintiff Mr M Condon - Defendant

SOLICITORS : Ziman and Ziman Solicitors - Plaintiff Dibbs Abbott Stillman Lawyers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

TUESDAY 29 MAY 2007

6289/06 JULIAN EMMANUEL LEVY v PETER BABLIS EX TEMPORE JUDGMENT 1 Before the Court is an application by the defendant to strike out the whole or portions of a statement of claim on the ground that it is embarrassing or vexatious. In the alternative, an order that further particulars be given is sought. 2 One of the complaints relates to a pleading of a secret commission. The statement of claim alleges that the defendant, a chiropractor, while treating the plaintiff as a patient, made representations to the patient about an investment opportunity, leading the plaintiff to invest moneys through the defendant. It is alleged that the plaintiff invested $1 million in tranches and that the $1 million has been lost. Damages and interest are claimed. 3 At paragraph 49 of the statement of claim, a secret commission is alleged in these terms: "In providing the third investment scheme advice, and in making the third investment scheme offer, the defendant breached his fiduciary duty to the plaintiff. Particulars (a) the defendant sought to profit by way of commission out of the plaintiff's participation in the investment scheme, which intended profit he did not disclose to the plaintiff;