Supreme Court New South Wales Medium Neutral Citation: Haschka Pty Limited v Ad Danieli Pty Limited [2012] NSWSC 1628 Hearing dates: 17 December 2012 Decision date: 17 December 2012 Jurisdiction: Equity Division Before: Brereton J Decision: Order that claims made against the first defendant in the statement of claim filed on 5 October 2011 and amended on 24 September 2012 be struck out Catchwords: PRACTICE AND PROCEDURE - application to strike out part of Statement of Claim - whether successor practice is responsible for the liabilities of the predecessor Category: Procedural and other rulings Parties: A D Danieli Pty Ltd trading as A D Danieli Chartered Accountants (First Defendant/ First Applicant) Alcock David and Danieli Pty Ltd (Second Defendant/ Second Applicant) S Danieli (Third Defendant/ Third Applicant) Frank Haschka Pty Ltd ACN 063 762 167 (Plaintiff/ Respondent) Representation: Counsel: M Sneddon (Applicants) A Munro (Respondent) Solicitors: Bridges Lawyers (Applicants) Lachlan McAuley (Respondents) File Number(s): 2011/ 316913 Judgment 1HIS HONOUR: This matter has been referred to me by the Registrar today, for "case management" in connection with a notice of motion filed by the defendants on 14 December 2012 seeking the striking out, or alternatively further and better particulars of part of the claim in circumstances where at least the second and third defendants have not complied with a direction that they serve their evidence by 10 September 2012. 2While it is correct that a previous notice of motion by the defendants to strike out the proceedings was abandoned when that motion, which also sought further and better particulars of the statement of claim, came before Macready AJ for hearing on 24 September 2012, it seems to me that in light of the evidence adduced in connection with the strike out application the particulars that have been provided do not answer the defects in the pleading. In short, the pleading alleges that the first defendant AD Danieli Proprietary Limited, referred to in the pleading as Danieli Proprietary Limited, and/or the second defendant, ADD Proprietary Limited, gave certain advice to the plaintiffs by or about 30 June 2007. 3Originally, the particulars identified as constituting the relevant actions, are a letter from AD Danieli to Mr Haschka of 26 March 2009 and a letter from AD Danieli to the Deputy Commissioner of Taxation of 7 April 2009. Neither of them satisfied the description in the pleading of "by or about 30 June 2007". The particulars now provided, pursuant to the Associate Judge's order, particularise a telephone conversation on or about 29 July 2007. Assuming that on or about 29 July 2007 can be considered to fall within the description "by or about 30 June 2007", the problem remains that the first defendant, Danieli Proprietary Limited, was plainly, according to the ASIC record, not incorporated until 21 January 2009. In those circumstances, it is impossible to see how it was responsible for the advice allegedly given on 29 July 2007. 4It is true that AD Danieli Proprietary Limited appears to have delivered a statement to Mr Haschka on or about 11 May 2011 claiming payment in respect of invoices for periods dating from November 2008. However, there are many bases upon which a successor practice, including an incorporated practice, may become entitled to collect fees due to a predecessor practice. But just because the assets of a predecessor practice may be transferred to a successor practice does not begin to establish that somehow the successor practice is responsible for the liabilities of the predecessor. 5The pleading cannot possibly be sustained in its current form. Whether it might be sustained in a different form alleging a transfer of some form of transfer of liabilities is doubtful, but need not be considered at this stage. What is quite clear is that it is untenable in its present form. 6It appears to be not in dispute that the relevant paragraphs of the statement of claim are the only ones which assert a claim against the first defendant. 7Accordingly, I make order one in the defendant's notice of motion filed on 14 December 2012 to the effect that the claims made against the first defendant in the statement of claim filed on 5 October 2011 and amended on 24 September 2012 are struck out. 8I order that the plaintiffs pay the first defendant's costs of the motion. 9I order that the second and third defendants not be entitled to rely at the hearing on any affidavit or statement evidence that has not been served by 21 January 2013. 10I adjourn the proceedings to 12 February 2013 at 9.30 before me for directions. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 May 2013