PKF (Gold Coast) Pty Ltd v Drake
[2021] QSC 326
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- PKF (Gold Coast) Pty Ltd v Drake[2021] QSC 326
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PKF (Gold Coast) Pty Ltd v Drake[2021] QSC 326
PKF (Gold Coast) Pty Ltd v Drake[2021] QSC 326
SUPREME COURT OF QUEENSLAND
CITATION: | PKF (Gold Coast) Pty Ltd & Anor v Drake [2021] QSC 326 |
PARTIES: | PKF (GOLD COAST) PTY LTD ACN 137 521 250 (first applicant/first defendant) SCOTT JAMES McMURTRIE (second applicant/second defendant) v PETER CHARLES DRAKE (respondent/plaintiff) |
FILE NO/S: | BS No 2822 of 2019 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 9 December 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 December 2021 |
JUDGE: | Martin J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the applicants/defendants seek to strike out the respondent’s/plaintiff’s sixth statement of claim – where the applicants/defendants argue that the action be struck out on the basis that the respondent/plaintiff is unable to provide a properly drawn pleading – where the respondent/plaintiff is now represented by a firm of solicitors – whether the statement of claim should be struck out Uniform Civil Procedure Rules 1999, r 149, r 156 Tutos v Roman Catholic Trust Corporation [2020] QCA 171 |
COUNSEL: | M Jones for the applicants/first and second defendants P Hackett for the respondent/plaintiff |
SOLICITORS: | Hall & Wilcox for the applicants/first and second defendants Holt Lawyers for the respondent/plaintiff |
- [1]This is an application by the first and second defendants to strike out the statement of claim and for summary judgment against the plaintiff.
- [2]The statement of claim the subject of this application is the sixth attempt to draw a pleading which complies with the requirements of the Uniform Civil Procedure Rules 1999 (“UCPR”).
- [3]The statement of claim is 36 pages long and comprises 111 paragraphs. It is a claim for damages for negligence against the first defendant as the accountants for the plaintiff and the second defendant as a director or partner of the first defendant with respect to what is alleged to be negligent advice or, perhaps, a failure to advise. The plaintiff seeks damages in excess of $140 million.
- [4]The events which are said to establish the cause of action in negligence occurred in early 2013. These proceedings were commenced shortly before the limitation period expired with respect to those matters. Since then, a number of statements of claim have been provided by the plaintiff, and they have either been struck out or accepted by the plaintiff to be inadequate. In July 2020, the plaintiff filed a notice that he was acting in person, and, after that, the fifth and then the sixth version of the statement of claim were filed. The plaintiff has been represented in this matter by Holt Lawyers since 30 November 2021. The plaintiff, though, drew this pleading.
- [5]Although lawyers now represent the plaintiff, he was bound by the Rules when he was self-represented, and they applied to him as much as they applied to a represented litigant. See Tutos v Roman Catholic Trust Corporation.[1]
- [6]The purpose of a pleading is to define the issues in dispute between the parties and to place each party in a position of knowing the other party’s case at trial. That position is obtained by a pleading complying with r 149(1) of the UCPR. That rule requires that a pleading must:
- (a)be as brief as the nature of the case permits, and
- (b)contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved, and
- (c)state specifically any matter which if not stated specifically may take another party by surprise, and
- (d)subject to r 156, state specifically any relief the party claims, and
- (e)if a claim or defence under an Act is relied on - identify the specific provision under the Act.
- (a)
- [7]The statement of claim in its present form does not comply with that rule.
- [8]It can be seen from the pleading that the plaintiff’s case is, broadly, that he was negligently advised or, perhaps, not advised to take certain action which would have prevented two companies from being placed in administration. He appears to say that, had he been properly advised, then that would not have occurred, and, because it did occur, he has suffered substantial loss.
- [9]The pleading is, in large part, a narrative statement of events that occurred at about the relevant time. But, in making those statements, the plaintiff has incorporated material that cannot be relevant, and does not comply with the requirements of a pleading. For example, in paragraph 7(e), he describes the nature of meetings held by one of the companies and that “there were no concerns or discussions about insolvency as it was business as usual”. Similarly, in paragraph 9(d), it is pleaded:
“At all times material to this proceeding:
…
- (d)there was never a hint of financial difficulties or any symptoms of insolvency.”
- [10]Under the heading “Tony Hickey”, there is a narrative description of alleged arrangements reached between the plaintiff and Mr Hickey with respect to the various companies and law firms involved with the companies the subject of administration. In paragraph 23, the plaintiff pleads the state of mind, not only of himself but also of a non-party - “Mr Van Der Hoven [was] not alarmed”.
- [11]In other parts of the pleading, irrelevant material is pleaded. For example, in paragraph 27, it is pleaded that “LM Toronto office was just about to open after a $100,000 cash deposit was paid into Canadian Securities Account”.
- [12]In paragraph 31, the plaintiff pleads what he says he “found out later” about actions by a director of one of the companies under administration.
- [13]Under the heading “Plaintiff becomes aware of unlawful activity”, there is a narrative of events alleged to have occurred but not pleaded as anything other than a mixture of fact, opinion and irrelevant material.
- [14]An example of opinion or irrelevant material is found in paragraph 43, which reads:
“Any proper review of a funds management business with nine managed funds and operating across 75 countries and 16 currencies would have been properly authorised and involved all of the board, senior executives, accountants, auditors, compliance and legal teams and the sole owner, CEO and chairman (the plaintiff).”
- [15]That paragraph is then “supported” by these particulars:
“The plaintiff returned from overseas on 13 March 2013 and did not have any knowledge of Hickey’s actions or contact with FTI prior to that.”
- [16]The pleading also contains other expressions of opinion by the plaintiff. For example, the particulars provided to paragraph 51 read:
“Hickey and the second defendant were known to each other. A phone call from the second defendant to Hickey could have explained the latest financial position of the plaintiff and the plaintiff’s up to date financial cash flows and reporting as per the most recent meeting. The second defendant should have explained to Hickey that there were no symptoms of insolvency and Hickey should tell FTI to cease all work. The defendants should have told Hickey that there is no time pressure necessary as this was simply not reality for the plaintiff and there was no need to pressure him to authorise and sign the minutes.”
- [17]Under the heading “Plaintiff’s reliance on the defendants”, the plaintiff pleads in paragraph 85:
“The plaintiff relied on the advice, or more particularly the lack of advice, and it caused the direct loss of income pleaded in paragraph 109(b) herein.”
- [18]That does not alert a defendant to the case being made – is the plaintiff claiming that advice was given negligently or that there was a failure to give advice?
- [19]There are numerous examples of repetitive assertions. The plaintiff refers in at least four places (paragraphs 3(f) and (h), 95 and 97) to the fact that the plaintiff knew the second defendant or relied upon the defendants’ professional advice for over 25 years.
- [20]Under the heading “The alternative steps”, there is a lengthy set of assertions about what the plaintiff would have done had he been advised as he claims was necessary. There is then a lengthy set of particulars which consists of statements of evidence and statements of the state of corporate knowledge and intention, which are not consistent with the balance of the pleading.
- [21]The case sought to be made by the plaintiff is that he has lost “income”. His pleaded case, though, is that one of the companies under administration had made loans to him. He has not set out in any relevant detail the manner in which he was provided with payments for the years before the companies were placed in administration. Some evidence of the nature of the payments which were made was provided at the hearing. That only goes to demonstrate the paucity of the pleading and the failure to plead the nature of the payments.
- [22]In paragraph 109(b), he pleads that he would have received income between 2013 and 2020 “in amounts (on average) no less than the amount which LMA paid the plaintiff in the years between FY 2009 and FY 2012”. The particulars then set out the amounts alleged to have been paid in those four years. The plaintiff, though, goes on in his claim for relief to claim damages in amounts that do not appear to be an average of any pleaded income and for each of the financial years 2017, 2018, 2019, 2020 and 2021, the same amount of $21,347,771 is claimed without any pleading to support it.
- [23]This pleading does not comply with the requirements of r 149. It is replete with irrelevant material, references to evidence and references to opinions. It cannot be allowed to stay in this form. The defendants, not unnaturally, complain that they are being put to expense and may suffer further as a result of the inadequate pleading. They seek that the action be struck out on the basis that the plaintiff is unable to provide a properly drawn pleading.
- [24]The plaintiff has had over eight years in which to formulate his case and gather the relevant material. I acknowledge that, for part of that period, he was bankrupt and could not have proceeded during that time. Nevertheless, he has had at least five full years in which he could have drawn the material together and created a suitable statement of claim.
- [25]A firm of solicitors now represents the plaintiff. On that basis, I am satisfied that it is appropriate to allow the plaintiff a final opportunity to draw a pleading which satisfies the Rules. It is, though, not appropriate for this matter to be allowed to meander on to the detriment of everybody.
- [26]I make the following orders:
- The statement of claim is struck out.
- The respondent/plaintiff has leave to file a further amended statement of claim by 21 February 2022.
- The respondent/plaintiff is to pay the applicants’/defendants’ costs of this application.
Footnotes
[1][2020] QCA 171.