Prime Capital Securities Pty Ltd v David Tai Acupuncture Research Centre Pty Limited [2013] NSWSC 725

Supreme Court New South Wales

Medium Neutral Citation: Prime Capital Securities Pty Ltd v David Tai Acupuncture Research Centre Pty Limited [2013] NSWSC 725 Hearing dates: 29 May 2013 Decision date: 29 May 2013 Jurisdiction: Common Law Before: Slattery J Decision: Fifth cross defendant's motion dismissed. Fifth cross defendant to pay 75% of the cross claimants' costs on the motion and all the third and fourth cross defendants' costs of the motion. Fifth cross defendant to serve a Statement of Account in relation to the loan made to the second cross claimant. Catchwords: PROCEDURE - summary disposal - application to strike out parts of the cross-claim under UCPR r 13.4 - the fifth cross-defendant claims that the cross-claim discloses no reasonable cause of action against him - whether the pleaded case is available to be made out - whether the case is adequately pleaded - not plain and obvious that there is no issue to be tried - HELD: motion dismissed. PROCEDURE - pleadings - whether knowledge under Australian Securities and Investments Commission Act 2001 s 12GF and s 236 of the Australian Consumer Law sufficiently pleaded - UCPR r 14.28 - HELD: pleadings sufficient - motion dismissed UNCONSCIONABLE DEALINGS - unconscionable conduct and misleading and deceptive conduct - the cross-claimants claim that the first cross-defendant did not disclose a fee payable under a loan agreement and engaged in unconscionable conduct - representation by silence - fifth cross-defendant a director of the first cross-defendant - cross-claim pleads that the fifth cross-defendant was a person knowingly involved in the first cross-defendant's conduct. COSTS - interlocutory decisions - general rule that costs follow event - the fifth cross-claimant unsuccessful on the motion - whether the cross-claimants should have all their costs of the motion - the cross-claimants amended the cross-claim after the strike out motion was filed - HELD: the fifth cross-defendant to pay 75% of the cross-claimants' costs of the motion. COSTS - interlocutory decisions - whether a parties not joined to the motion should have their costs of the motion - the parties had a direct procedural and substantive interests in the outcome of the motion - HELD: the fifth cross-defendant to pay the costs of the third and fourth cross-defendants on the motion. Legislation Cited: Australian Securities and Investment Commission Act 2001 s 12GF, s 12CA to 12CC, s 12BA to 12BN Uniform Civil Procedure Rules 2005 r 13.4, r 14.28 Real Property Act 1900 s 57(2)(b) Cases Cited: General Steele Industries v Commissioner for Railways (1964) 112 CLR 125 Texts Cited: P Butt Land Law 6th edition Category: Interlocutory applications Parties: Prime Capital Securities Pty Limited: Plaintiff,First Cross Defendant David Tai: Defendant, Cross Claimant David Tai Acupuncture Research Centre Pty Limited: Second Cross Claimant Global Nominees Pty Limited: Second Cross defendants Sandra Littlewood: Third Cross Defendant Audrey McDonald: Fourth Cross Defendant Paul Scanlon: Fifth Cross Defendant Representation: Counsel: Mr Newton (Plaintiff and Fifth Cross Defendant) Mr Rickard (Defendant and Second Cross Claimant) Mr Griscti (Third and Fourth Defendants) Solicitors: File Number(s): 2011/00385376