James Shipley and Patricia Shipley v Masu Financial Management Pty Limited [2008] NSWSC 252

New South Wales Supreme Court

CITATION : James Shipley and Patricia Shipley v Masu Financial Management Pty Limited [2008] NSWSC 252 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 7 March 2008

JUDGMENT DATE : 3 April 2008

JUDGMENT OF : Hammerschlag J

DECISION : Parts of statement of claim and defence struck out. No order at this stage that proceedings not be carried on by plaintiffs representing other persons

CATCHWORDS : PRACTICE AND PROCEDURE - Uniform Civil Procedure Rules Pt 7 r 7.4 - representation of concurrent interests - whether requirement that claims of all persons give rise to a substantial common issue of law or fact satisfied - whether discretion should be exercised to order that proceedings no longer be carried on by plaintiffs as representing other members of group - Application to strike out part of claim on basis that no course of action is disclosed - Corporations Law 2001 (Cth) ss 1012A, 1012A(3), 1013C and 1013D - requirements for pleading claim - requirements for pleading loss or damage - Civil Liability Act 2002 NSW - Pt 1A - whether defence of contributory negligence is available to a claim for breach of s 1012A of the Corporations Act

LEGISLATION CITED : Corporations Act 2001 (Cth) Civil Liability Act 2002

Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 Wong v Silkfield (1999) 199 CLR 255 Bright v Femcare Ltd (2002) 195 ALR 574 CASES CITED : Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 71 ALR 615 Booksan Pty Ltd, Jaymay Constructions Pty Ltd v Wehbe, Elmir and Others; GIO General Ltd and GIO Workers Compensation (NSW) Ltd v Wehbe, Elmir and Others [2006] NSWCA 3 Jameson v Professional Investment Services Pty Ltd [2007] NSWSC 1437