Paul Ernest Simmons -v- Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455

Supreme Court New South Wales

Medium Neutral Citation: Paul Ernest Simmons -v- Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 Hearing dates: 19 April 2012 Decision date: 07 May 2012 Jurisdiction: Equity Division Before: Hammerschlag J Decision: Plaintiff's claim against second defendant and third defendant dismissed with costs Catchwords: PRACTICE AND PROCEDURE - Supreme Court of New South Wales - Uniform Civil Procedure Rules 2005 (NSW) Pt 13 r 13.4(1)(b) and (c) - application to dismiss proceedings against second defendant and third defendant on the basis that the plaintiff has disclosed no reasonable cause of action and the proceedings are an abuse of process - plaintiff claims that the first defendant sold land to the second defendant who on-sold part of it to the third defendant in which land the plaintiff had a beneficial interest in circumstances where the sale was a breach of fiduciary duty by the first defendant - plaintiff had in earlier proceedings against the first defendant asserted the same beneficial entitlement - those proceedings culminated in orders of the Court of Appeal that plaintiff had a beneficial entitlement in the proceeds of sale - plaintiff claims against the second and third defendants that they participated in the alleged breach of fiduciary duty and now hold their interests in the land on constructive trust for him - second and third defendants' interests in the land are registered under the provisions of the Real Property Act 1900 (NSW) - HELD - plaintiff has disclosed no reasonable cause of action because he can have no interest in the land, which can be asserted against the second and third defendants - his only interest is that recognised and declared by the Court of Appeal in the proceeds of sale - HELD - further, he has disclosed no reasonable cause of action because he must plead and establish fraud on the part of the second and third defendants, and has not pleaded it - HELD - further, the proceedings are an abuse of process because they are an attempt by the plaintiff to re-litigate a central issue determined in the prior judgment of the New South Wales Court of Appeal