Antai Solar Australia Pty Ltd v Towers & Ors [2026] QSC 10

SUPREME COURT OF QUEENSLAND CITATION: Antai Solar Australia Pty Ltd v Towers [2026] QSC 10 PARTIES: ANTAI SOLAR AUSTRALIA ACN 646 440 173 (Plaintiff) v JAMIE STUART TOWERS, ANTHONY ROGER HUNT, MATTHEW JAMES GREEN, MICHAEL ANGELO GEORGHIOU, MATTHEW PAUL BEASLEY, CLIVE MALCOLM TODD, JOHN MARK KOTZUR, TIMOTHY DAVID TAYLOR, CHERYL ANN LAIRD, SIN JUNG KWON, NATHANAEL MICHAEL LEE AND DONAVIN VAN ROOYEN (First Defendants) AND DA WEN (AKA MICHAEL WEN) (Second Defendant) AND HANRICK CURRAN INVESTMENTS PTY LTD ACN 629 899 734, HANRICK CURRAN HOLDINGS PTY LTD ACN 138 962 615, FORVIS MAZARS (QLD AND NT) PTY LTD ACN 102 716 101, FORVIS MAZARS ADMINISTRATION (QLD & NT) PTY LTD ACN 141952 972, FORVIS MAZARS EMPLOYMENT (QLD & NT) PTY LTD ACN 158 971 012, FORVIS MAZARS CORPORATE FINANCE PTY LTD ACN 165 488 620, FORVIS MAZARS FINANCIAL ADVISORY (QLD & NT) PTY LTD ACN 652 563 016, FORVIS MAZARS SP (QLD & NT) ACN 631 498 578, FORVIS MAZARS HR (QLD & NT) PTY LTD ACN 625 954 289, FORVIS MAZARS SUPERANNUATION (QLD & NT) PTY LTD ACN 010 749 550, FORVIS MAZARS WEALTH STRATEGISTS (QLD & NT) PTY LTD ACN 121 011 363 AND FORVIS MAZARS ASSURANCE PTY LTD ACN 132 902 188 (Third Defendants) AND HOWARD YIN (Fourth Defendant) FILE NO/S: BS1522/25 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane -- 1 of 16 -- 2 DELIVERED ON: 4 February 2026 DELIVERED AT: Brisbane HEARING DATE: 3 November 2025 JUDGE: Freeburn J ORDERS: 1. Pursuant to rule 135(1) of the Uniform Civil Procedure Rules 1999, the defendants have leave to bring the application filed on 3 October 2025. 2. The claim and statement of claim be set aside as against the defendants other than Mazars (Qld) Pty Ltd, Mr Wen and Mr Yin; 3. The statement of claim be struck out as against Mazars (Qld) Pty Ltd, Mr Wen and Mr Yin; 4. Subject to further order of the court, the plaintiff have leave to replead limited to the claims against Mazars (Qld) Pty Ltd, Mr Wen and Mr Yin. 5. I will hear the parties on costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS – where plaintiff sues 12 individual defendants, 12 corporate defendants and Mr Wen and Mr Yin – where the defendants argue that the statement of claim does not identify any arguable cause of action against the 12 individual first defendants, or 11 of the 12 corporate third defendants – where defendants contend that the plaintiff had no dealings with any entities other than Mazars (Qld)– where the defendants allege the broad sweep of allegations against the individual and corporate defendants is an abuse of process and oppressive – where the defendants that the court should infer that its processes are being invoked for an illegitimate purpose – where the defendants have not yet filed a notice of intention to defend or a defence – where the defendants seek leave pursuant to rule 135(1) of the UCPR to bring this application prior to filing a notice of intention to defend – whether the defendants should be granted leave pursuant to rule 135(1) of the UCPR to bring this application prior to filing a notice of intention to defend PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the first, third and fourth defendants apply to set aside, or strike out the plaintiff’s claim and statement of claim – where plaintiff sues 12 individual defendants, 12 corporate defendants and Mr Wen and Mr Yin – where the defendants argue that the statement of claim does -- 2 of 16 -- 3 not identify any arguable cause of action against the 12 individual first defendants, or 11 of the 12 corporate third defendants – where the plaintiff company only contracted with one corporate defendant, Mazars (Qld) – where the defendants complain that the plaintiff had no dealings with any entities other than Mazars (Qld) – where the defendants argue that the broad sweep of allegations against the individual and corporate defendants is an abuse of process and oppressive – where the plaintiff pleads the existence of a broad partnership – where the plaintiff concedes that it not possible for the plaintiff to plead, with specificity, which individuals and/or entities constituted an operative partnership – where both contractual documents – where both contractual documents alleged are between the plaintiff and Mazars (Qld) – where the defendant raises complaints in relation to the statement of claim – whether the claim and statement of claim should be set aside as against the defendants other than Mazars (Qld) Pty Ltd, Mr Wen and Mr Yin – whether the statement of claim should otherwise be struck out in part or in full Uniform Civil Procedure Rules 1999 (Qld), r 16, r 171, r 135 Australian Securities and Investments Commission v Fortescue Metals Group Ltd [2011] FCAFC 19, cited Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39, cited Leichardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6, cited Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61, cited COUNSEL: R Perry KC, with I A Erskine, for the plaintiff BD O’ Donnell KC, with B W Wacker, for the first, third and fourth defendants SOLICITORS: Hawthorne Cuppaidge & Badgery for the plaintiff Wotton Kearney for the first, third and fourth defendants [1] This is an application by the first, third and fourth defendants (‘the defendants’1) pursuant to r 16(e) of the Uniform Civil Procedure Rules 1999 (‘UCPR’) to set aside, or alternatively pursuant to rules 171(a) and 171(e) of the UCPR to strike out in whole or in specified parts, the plaintiff's claim and statement of claim filed 14 April 2025. [2] The background is stated briefly below.2 Background [3] The plaintiff, Antai Solar Australia Pty Ltd, is a wholly foreign owned company incorporated in Australia. Antai Solar engaged Forvis Mazars (Qld & NT) Pty Ltd 1 The first, third and fourth defendants are the active defendants and, for reasons of convenience I will refer to them as ‘the defendants’. 2 See paragraphs 2, 3 and 4 of the defendants’ submissions. -- 3 of 16 -- 4 (formerly Mazars (Qld) Pty Ltd)3 pursuant to two agreements both of which are dated 12 January 2021. Those agreements record that Antai Solar engaged Mazars (Qld) to perform the following work: (a) professional accounting services listed in appendix A to the agreement, namely local director services and corporate secretarial services and the preparation of monthly business activity statements, financial statements and tax returns (‘the Director Services Agreement’); (b) accounting and payment services, namely (amongst other things) setting up accounting software, preparing monthly profit and loss statements and balance sheets and preparing supplier and expense payments (‘the Accounting Services Agreement’). [4] Antai Solar alleges that, in the performance of the Director Services Agreement, the second defendant (Mr Wen) caused $9.264 million to be transferred from the Antai Solar’s bank account with National Australia Bank to an account controlled by Mr Wen and, as a consequence, Antai Solar has suffered loss. [5] In simple terms, the allegation is that Mr Wen stole $9.264 million from Atai Solar. Mr Wen is described as a partner of at least one or more of the entities in the Mazar’s group. Mr Wen cannot be found and, although named as the second defendant in the proceeding, has not been served or taken any part in the proceedings. [6] Rather than simply sue Mazars (Qld) and Mr Wen for its alleged losses, the plaintiff sues some 26 defendants, the 12 individuals who are the first defendants, the 12 corporate defendants who are the third defendants, as well as Mr Wen and Mr Yin (another ‘partner’). [7] The defendants argue that the statement of claim does not identify any arguable cause of action against the 12 individual first defendants, or 11 of the 12 corporate third defendants. The exception is Mazars (Qld) – the entity retained by Antai Solar pursuant to the Director Services Agreement and the Accounting Services Agreement. The defendants complain that Antai Solar had no dealings with any entities in the Mazar group of companies other than Mazars (Qld), and that the broad sweep of allegations against the individual and corporate defendants is an abuse of process and oppressive. The defendants contend that the court should infer that the court’s processes are being invoked for an illegitimate purpose, namely, to embarrass or pressure the defendants to settle the proceedings.4 [8] The defendants have not yet filed a notice of intention to defend or a defence. For that reason, the defendants seek leave, pursuant to rule 135(1) of the UCPR, to bring this application prior to filing a notice of intention to defend. That leave should be and will be granted because, otherwise, the defendants would be unnecessarily put to the cost of filing a notice of intention to defend and a defence in response to a claim and a statement of claim which, for the reasons explained below should be set aside or struck out. 3 For convenience I will refer to Forvis Mazars (Qld & NT) Pty Ltd (formerly Mazars (Qld) Pty Ltd) – the third named third defendant - as ‘Mazars (Qld)’. Mazars (Qld) is one of a group of companies called Mazars. 4 See paragraph 4 of the defendants’ submissions. -- 4 of 16 -- 5 Contractual Relationship [9] Mazars is a group of accounting companies. It has a number of distinct businesses, such as corporate finance, financial advisory, human resources, wealth strategies and superannuation. Presumably a specific entity employs the staff. However, the entity that Antai Solar contracted with was Mazar (Qld). Only that entity could have sued Antai Solar for outstanding fees. Other entities may have assisted with the work. Explicitly, though, the parties agreed that their contractual relationship was between Antai Solar and Mazar (Qld). [10] As the defendants explain, there can be no doubt that the agreements are between Mazars (Qld) Pty Ltd and the plaintiff: (a) each of the Director Services Agreement and the Accounting Services Agreement names Mazars (Qld) (with its Australian Business Number) on the footer of the first page; (b) under the Director Services Agreement, the plaintiff “confirms” that it appoints Mazars (Qld) as its tax agent; (c) under the Accounting Services Agreement, the terms and conditions (Part II) extensively refer to Mazars (Qld) and no other Mazars entity; and (d) the Accounting Services Agreement is signed “for and on behalf of” Mazars (Qld).5 Legal Principles [11] The legal principles are not in dispute. Under UCPR rule 171 the power to strike out a pleading is used “sparingly and only in clear cases” with a view to not improperly depriving a party of the opportunity for a trial. There must be “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”. Once it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend on that determination, the power to strike out cannot be exercised. However, the court should not shrink from striking out a pleading which does not disclose a reasonable cause of action. The court may do so even if prolonged argument is necessary in order to expose the defect in the pleading.6 [12] The power to set aside a claim under rule 16(e) will also only be exercised in the clearest of cases.7 It is a power that is materially different in consequence to the power under UCPR rule 171 to strike out a claim or statement of claim. The power under rule 171, when exercised, will not put an end to the proceeding unless leave to replead is refused.8 5 Paragraph 20 of the defendants’ submissions. 6 These principles are usefully set out by Bradley J in Santos Ltd v Fluor Australia Pty Ltd (No 1) [2020] QSC 372. These principles were adopted by Martin SJA in McEwan v Commissioner of Taxation [2022] QSC 81 at [12]. These authorities are set out in the defendants’ submissions at [23]. 7 Lewis v Minister for Police and Corrective Services and Minister for Fire and Emergency Services [2022] QSC 70 at [3]. 8 Lewis v Minister for Police and Corrective Services and Minister for Fire and Emergency Services [2022] QSC 70 at [3]. -- 5 of 16 -- 6 [13] A clear case for the exercise of the discretion may be shown where there is no possible cause of action, or where the proceeding is an abuse of process, or unjustifiably oppressive to one of the parties.9 Principal Problem [14] The principal problem with Antai Solar’s pleading is that it pleads the existence of a broad partnership. Paragraph 64 of the statement of claim is in these terms: “At all material times, each of: (a) the First Defendants, and/or (b) the Second Defendant; and/or (c) one or more of the Practice Entities,10 were engaged in carrying on a single business in common with a view to profit under the firm name or style Mazars in Queensland, in that: (d) the Mazars Business offered and provided professional accounting and consulting services in Queensland for value; (e) the director Partners were, and are, engaged in the carrying on of a single business, comprising multiple activities, divisions or entities; (f) the business was carried on by two or more persons, including both individuals and/or corporate entities, within the meaning of “person” under s.32D of the Acts Interpretation Act 1954; (g) the natural person director Partners: (i) conducted, directed and controlled the business operations through a network of corporate entities controlled by them, and did so in common, with a view to profit; (ii) had a common intention or mutual understanding to carry on a single business enterprise, notwithstanding that various aspects of the business were carried on through separate companies; (iii) used the corporate entities in question as vehicles or instrumentalities by the said individuals to give effect to their joint business activities; (iv) carried on the business activities through the various entities formed as a unified and coordinated single business enterprise, managed and operated under their strategic direction; (v) jointly exercised control over the decision-making, finances, and key operations of the single business 9 Ibid at [3], [4]. 10 The expression Practice Entities was defined as the (12 corporate) third defendants. -- 6 of 16 -- 7 enterprise as a whole, including directing how profits would be applied or distributed; (vi) benefited from the profits generated by the single business enterprise carried on through the corporate vehicles in proportion to, or as a consequence of, the percentage of ordinary shares held by their nominated entity in H C Investments; (h) the Mazars Business was conducted not for or on behalf of a third party, but for the mutual benefit of the director Partners, through their ownership and control of the constituent Practice Entities; (i) the Practice Entities involved did not carry on truly independent businesses, but instead acted in concert under the effective control and direction of the director Partners, as joint proprietors in a single business enterprise carried on in common; (j) the substance and reality of the arrangement was that of a partnership between the individual director Partners, notwithstanding the interposition of separate salaried Partners and Practice Entities; (k) the Mazars Business was conducted on the basis that the director Partners would obtain a financial return or benefit from it, with any surplus remaining after payment of business expenses to be shared between the Shareholders consistently with the number of ordinary shares held in HC Investments; (l) the arrangement between the director Partners, whether or not expressed in formal agreement, was such that each party expected to participate in the net returns of the single business enterprise, and not merely to receive gross revenue or reimbursement; (m) the receipts of the single business enterprise were intended to be applied in the first instance to the payment of business expenses, with the residual amount ultimately constituting a benefit for each of the director Partners, thereby demonstrating a common view to profit; (n) the Mazars Business was not carried on as a charitable, administrative, or cost-recovery venture, but was conducted in the expectation of producing commercial gain, to be enjoyed by the director Partners; (o) the substance and commercial reality of the arrangement, which was directed towards generating financial return and allocating it between the director Partners, is evidence that the single business enterprise was carried on with a view to profit.” [15] Paragraph 65 concludes in this way: -- 7 of 16 -- 8 “In the premises of the facts and matters pleaded herein, at all times material to this proceeding, the Mazars Business: (a) constituted a firm or partnership (the Mazars Partnership) within the meaning of those terms as used in sections 4 and 5 of the Partnership Act 1891 (Qld Partnership Act) in that the business was carried on in common with a view to profit in Queensland; (b) with such firm being itself constituted: (i) by at least, the director Partners; (ii) further or alternatively, by the director Partners carrying on such business in partnership with one or more of the: (A) the Practice Entities; and/or (B) the salaried Partners.” [16] It is an industrious attempt to, in effect, unwind the entire Mazar group legal structure for the purposes of this litigation. Paragraphs 64 and 65 really comprise submissions rather than any material facts. The Antai Solar’s submissions concede that: “(a)t this preliminary stage it is not possible for the Plaintiff to plead, with specificity, which individuals and/or entities constituted an operative partnership”.11 That is an important concession. It is a concession that has these elements: (a) Antai Solar accepts that it is bound by the pleading requirement that all necessary particulars should be in or with the pleading;12 and (b) Antai Solar concedes that, despite that requirement, it is unable to properly plead or provide particulars of the partnership that it alleges. [17] Antai Solar proposes to use the interlocutory processes13 to examine the group’s business in the hope of making good the allegation that there was a broad ‘Mazars Partnership’ rather than a group of companies with different roles. The breadth of that proposed examination is daunting. Conceivably, nearly every document within every group entity may be directly relevant to the broad inquiry. And, until there is some specificity, the defendants are required to meet a case that there was a relationship that comprises a partnership, in the sense described by s 5(1) of the Partnership Act 1891,14 between some or all of the 12 individual first defendants, some or all of the 12 corporate third defendants, and Mr Wen and Mr Yin. There are literally hundreds of different alternative partnerships. [18] As Keane CJ said in Australian Securities and Investments Commission v Fortescue Metals Group Ltd: 11 Antai Solar’s submissions at [172]. See the later discussion of the concept of the pleading being inadequate ‘at this preliminary stage’. 12 See rule 157 of the Uniform Civil Procedure Rules 1999. 13 See, for example, the references to “at this preliminary stage” in paragraphs 168 and 172 of Antai Solar’s submissions. 14 Section 5(1) of the Partnership Act 1891 provides that: “Partnership is the relation which subsists between persons carrying on a business in common with a view of profit.” -- 8 of 16 -- 9 The presentation of a range of alternative arguments is not apt to aid comprehension or coherence of analysis and exposition; indeed, this approach may distract attention from the central issues in the case.15 [19] That passage was approved on appeal to the High Court.16 There, French CJ, Gummow, Hayne and Kiefel JJ said: The task of the pleader is to allege the facts said to constitute a cause of action or causes of action supporting claims for relief. Sometimes that task may require facts or characterisations of facts to be pleaded in the alternative. It does not extend to planting a forest forensic contingencies and waiting until final address or perhaps even an appeal hearing to map a path through it. In this case there were hundreds, if not thousands of alternative and cumulative combinations of allegations.17 [20] As counsel for the defendants points out, here, among the various alternatives, it is alleged that the directors of the corporate defendants carried on business with the very companies of which they are directors as partners of a partnership. It is hard to imagine that a person would both: (a) enter into a partnership with the company, agreeing to carry on a business in common with the company with a view of profit; and (b) accept the plenary responsibilities of a director of the company. [21] As is discussed below, it is doubtful that such a dual personality was intended or can be inferred. [22] In any event, the point is that what is really alleged against the defendants amounts to something of a fishing expedition. What Antai Solar proposes is a full inquiry to see if there is a basis for one or other of its multiple alternative alleged partnerships. It is a ‘fishing expedition’ in the sense that Antai Solar has no evidence that fish of a particular kind are in pool but desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.18 [23] Thus, it can be accepted that the present pleading and particulars are inadequate. That much is conceded. And, given the state of the pleading, there is unlikely to be any improvement in the particularity of the pleading. Disclosure will not be ordered before a proper pleading or adequate particulars.19 [24] In his oral submissions counsel for Antai Solar made frequent reference to the early stage of the proceedings, or as it was sometimes referred to “this preliminary stage”. I reject the idea that is implicit in these submissions, namely that the first pleading of a plaintiff’s case is akin to a dress-rehearsal for the real pleadings that are to come at later stages in the litigation. The pleading rules, particularly the requirements of rules 149-156 of the UCPR, do not have some relaxed application at the outset. A party’s 15 [2011] FCAFC 19 at [16]. 16 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 at [27]. 17 Ibid. 18 Matthews v SPI Electricity Pty Ltd [2014] VSC 131 at [40]. 19 Proctor v Kalivis [2009] FCA 795 at [78]; Weeks v Nationwide News Pty Ltd (No 2) [2019] WASC 44 at [31]. Of course, in exceptional cases a party may apply for pre-action disclosure/discovery. -- 9 of 16 -- 10 pleading should comply with the pleading rules and it should not be assumed that the court will subsequently exercise its discretion to permit an amendment of a pleading under rule 375.20 [25] And so, the present pleading and particulars of the alleged partnership are inadequate. That breach of the rules is not excused or lessened by pointing to the stage of the proceeding. [26] Counsel for Antai Solar argued that the Mazar’s group structure was opaque. I am not persuaded that description is an accurate one. Often groups of companies have detailed and even complex structures. But complexity is not same as opacity. The structure and ownership of the corporate entities will be evident from ASIC searches. And, as will be seen, the agreements are clear about which entity is the contracting party. In any event, even if the description were an accurate one, the opacity in the defendants’ group structure does not justify a failure to comply with the rules and an opacity in the plaintiff’s pleading. [27] One ‘factual indicia’ said to support the idea that there was a broad ‘Mazars Partnership’ is the fact that some individuals in the Mazar’s group were given the label ‘partner’.21 That label, of course, is frequently used in professions such as law and accounting. It is based on the fact that, historically, law firms and accountancy practices operated as partnerships. But for at least 20 years those professions have frequently operated through corporate entities. Naturally enough, the designation of the decision-makers as ‘partners’ has survived. But there is no magic in the label. [28] Another of the ‘factual indicia’ said to support the idea that there was a broad ‘Mazars Partnership’ is the fact that Mr Wen discussed the appropriateness of a partner, namely himself, being appointed as sole director. That hardly supports the proposition that, despite the legal position, and the existence of the 12 separate corporate entities, this was a partnership of individuals, or individuals and corporations. Similarly, the fact that the 12 individuals exercised control, and was “relatively tight knit” (whatever that means), and operated to make a profit, does not indicate that the group acted as a partnership. [29] Similarly, Antai Solar’s reliance on the wording in the terms and conditions is misplaced. The terms and conditions say this: Mazars, “we”, “us”, “our” and similar wording refers, as appropriate, to Mazars, any of its practice entities, Partners, Directors and employees. [emphasis added] [30] It is a boilerplate provision that is designed to be read with the balance of the contractual documents. Those contractual documents make clear that the contract is between Antai Solar as the client, and Mazars (Qld) as the appropriate ‘practice entity’.22 20 The court permit an amendment under rule 375, or a party may amend (where leave is not required and before a request for trial) but subject to disallowance by the court: see rules 375-379. 21 Antai Solar’s submissions at [173(a) and (b)]. 22 The exception is if Mazars Audit (Qld) Pty Limited is appointed as auditor: see clause 13 of the letter of engagement of 12 January 2021. See the discussion below. -- 10 of 16 -- 11 The Mazars Partnership [31] There are further problems with the Antai Solar allegations. As the defendants submit, the pleading of the Mazars Partnership is circular and confused.23 The Mazars Business and the Mazars Partnership are differently defined. There are multiple alternatives and a pervading obscurity. There is also the problem identified in paragraphs 34-37 of the defendants’ submissions: “34. The partnership is alleged to arise because, amongst other things (at SOC [64]), the “natural person director Partners” (i.e. the first defendants): (a) “conducted, directed and controlled the business operations through a network of corporate entities controlled by them, and did so, with a view to profit”; and (b) “had a common intention or mutual understanding to carry on a single business enterprise, notwithstanding that various aspects of the business were carried on through separate companies”. 35. Of course, that is a nonsense. As the Partnership Act 1891 (Qld) recognises in s 5(2): However, the relation between members of any company or association that is— (a) incorporated under the Corporations Act; or (b) formed or incorporated by or in pursuance of any other Act of Parliament or letters patent, or Royal Charter; is not a partnership within the meaning of this Act. 36. Here though, it is not alleged that the members of the corporate defendants carried on business as a partnership. Worse for the plaintiffs, it is alleged that the directors carried on business with the very companies of which they are directors as partners of a partnership. 37. The effect of the plaintiff’s pleas is that, where there are a group of related companies, controlled by common directors those directors and those companies are all carrying on business as partners.” [emphasis in original] [32] There are no pleaded material facts that might be said to support the existence of such an unlikely partnership. Many of the alternatives involve the directors having dual roles as directors and partners of the same companies. Certainly, Antai Solar does not plead any material facts capable of sustaining at trial a conclusion that it contracted with all of the first and third defendants other than Mazars (Qld).24 There is, instead, 23 See paragraphs 24 to 37 of the defendants’ submissions – which I accept. 24 The defendants’ submissions at [43]. -- 11 of 16 -- 12 resort to a submission that there were one or more of multiple alternative possible partnerships. [33] In any event, that discussion of Antai Solar’s contention that there was some unidentified partnership, between unidentified partners, leads back to Antai Solar’s concession that: “At this preliminary stage it is not possible for the Plaintiff to plead, with specificity, which individuals and/or entities constituted an operative partnership”.25 That failure to even identify the partnership alleged, exposes that Antai Solar is engaged in an exercise of fishing for a case, which it hopes it may later be able to plead, rather than complying with its present obligation to properly plead the case in accordance with the rules. The Retainer [34] There is another related problem. In a sense Antai Solar’s argument that there was some unidentified partnership is only one of several problems. A vital issue is this: which entity did Antai Solar contract with? [35] The only contractual documents alleged are the Director Services Agreement and the Accounting Services Agreement. Both explicitly provide that Antai Solar retained Mazars (Qld). The only exception specified was if an auditor was appointed. In that event, another company in the Mazars group, Mazars Audit (Qld) Pty Limited, was to be appointed as the auditor. That event is not said to have occurred. [36] And so, whether or not there was some unidentified partnership, Antai Solar retained Mazars (Qld). Antai Solar did not retain any other entity. Looking at the Director Services Agreement and the Accounting Services Agreement nothing could be clearer. [37] Antai Solar points to the fact that in the Accounting Services Agreement the Mazars trademark was used. To state the obvious, a particular logo or trademark may be used by a number of companies within a group of companies. No material facts are pleaded that make the use of the logo or trademark relevant or decisive. It is not a basis for ignoring the express retainer of Mazars (Qld). [38] Antai Solar make the further point that the Accounting Services Agreement was signed by Mr Van Rooyen on behalf of Mazars (Qld) within his actual and ostensible authority. It is said that Mr Van Rooyen signed at a time when he was not a director of Mazars (Qld). Again, to state the obvious, a company may enter into a transaction even if the documents recording the transaction were not signed by a person who was a director at the time. It is sufficient if the person had actual and ostensible authority. No material facts are alleged which demonstrate that Mr Van Rooyen did not have that authority. [39] Similarly, Antai Solar points to the fact that the Director Services Agreement uses the Mazars trademark and was signed by Mr Wen. The same problems arise. The assertion is then made that Mr Wen signed: as agent for and on behalf of the First Defendants or those entities or persons conducting the Mazars Business, or Mazars as that term is 25 Antai Solar’s submissions at [172]. -- 12 of 16 -- 13 used in the Terms and Conditions of Engagement annexed to the Letters of Engagement, pleaded in Part V of this pleading26 [40] However, that is a submission rather than a material fact. The express words of the Director Services Agreement provide that: On behalf of Antai Solar Australia Pty Ltd, I hereby confirm that I appoint Mazars (Qld) Pty Limited (Mazars) as tax agent for the taxpayers listed in the attached Appendix [i.e. Antai Solar]. [emphasis added] [41] For those reasons the claims against the defendants other than Mazars (Qld) Pty Ltd, Mr Wen and Mr Yin have no prospect of success. To use the language of the authorities discussed above, the court should not shrink from striking out a pleading which does not disclose a reasonable cause of action. Those claims should be set aside. [42] There are further problems with the pleading. The Specific Complaints – Non-Delegable Duty [43] The defendants also make 15 specific complaints about the statement of claim. One of those complaints is that Antai Solar pleads that each of the first defendants, in their own capacity and in their capacity as directors of each of the third defendants, owed a “non-delegable duty” to the plaintiff. [44] Such a duty arises where there is “a special responsibility or duty to see that care is taken”.27 Typically, such a special responsibility arises where the relationships are employer/employee; hospital/patient; school authority/pupil; and occupier/contractual entrant in circumstances involving extra-hazardous activities.28 [45] On this point, I accept the defendants’ submissions that: (a) the non-delegable duty that the plaintiff pleads at paragraph 74 of the statement of claim—being a duty to the plaintiff to “procure, supervise or ensure the proper performance by Wen and Yin of the services required to be performed by them under the Accounting Services Agreement” is not a non-delegable duty within the recognised categories of cases giving rise to such a duty; and (b) in any event, Antai Solar does not plead, with precision, the nature and content of that duty which could give rise to a new category. [46] No circumstances are pleaded that would give rise to a special responsibility or duty to see that care is taken.29 Paragraph 70(a) of the statement of claim contains an allegation to the effect that the director/partners “collectively exercised complete control over the conduct of the Mazars Business”. But it is not clear why the director/partners’ control here was any more stringent than would be the case for any 26 Statement of claim at paragraph 33(e)(ii). 27 Leichardt Municipal Council v Montgomery (2007) 230 CLR 22 at [6] per Gleeson CJ citing Kondis v State Transport Authority 1984) 154 CLR 672 at 687. These authorities are helpfully extracted in the defendants’ submissions at paragraphs 72 to 75. 28 Leichardt Municipal Council v Montgomery (2007) 230 CLR 22 per Kirby J at [110]. 29 Kondis v State Transport Authority (1984) 154 CLR 672 at 687. -- 13 of 16 -- 14 other business or professional practice or why the control here gives rise to a special responsibility or duty. [47] Paragraphs 70(b) to (r) of the statement of claim comprise numerous allegations concerning what the director/partners knew or understood but, again, it is unclear as to why that subjective knowledge gives rise to a special responsibility or duty or to a new category of non-delegable duty. The Other Specific Complaints [48] There are other specific complaints about the pleading that are legitimate complaints. [49] First, there are the difficulties in identifying the entities that Antai Solar says it retained. I agree with the defendants that these allegations are so vague, circular, inconsistent and nonsensical that the defendants do not know the case they have to meet. I agree also that the use of “and/or” in various parts of the pleadings, leading to multiple alternative cases, compounds this effect. [50] Second, the statement of claim does not establish any arguable case for personal liability of the directors of Mazars (Qld) in negligence. [51] Third, paragraph 75(a) of the statement of claim pleads that the first defendants owed a “duty of care to [Antai Solar] to take all reasonable steps to effect compliance with Wen of his obligations”. No material facts are pleaded that might establish such a duty and Antai Solar does not identify what “compliance” was or how it was to be “effected”. The same problems arise with the allegation in paragraph 75(b) of a “failure” to implement “appropriate” supervision and monitoring of Mr Wen’s conduct. However, Antai Solar does not plead what that “appropriate” supervision and monitoring ought to have been. [52] Fourth, the pleading does not identify the misleading or deceptive character of the misrepresentations pleaded in paragraph 93. [53] Fifth, the pleading does not identify the alleged breaches of contract. [54] Sixth, the pleas of states of mind in paragraphs 16(b), 26(c), 27, 70, 72, 94, 96 and 97(b)(ii) are inadequately pleaded contrary to rule 150(1)(k) of the UCPR. [55] Seventh, the defendants complain that: …the plaintiff does not plead any material facts by which each individual defendant “had and exercised the power and authority” to do the things pleaded in SOC [15](a) and “authorised” the conduct pleaded in SOC [15](b). Or how that individual defendant had “total effective control of and over” and “complete control over” each of the first and third defendants: SOC [68] and [70](a). Rather, the plaintiff makes a rolled up pleading that asserts that each of 25 defendants had the same level of power and authority and authorised the things pleaded. -- 14 of 16 -- 15 The additional difficulty with these pleas is that not all individual defendants are directors of all of the corporate defendants: see Schedule A. Therefore, how could an individual defendant “control” a corporate defendant of which he or she is not a director?30 [56] It is a legitimate complaint. But there are also related problems. The pleading seems to use a variety of expressions for the allegation that the individual directors exercised some form of control. Expression such as “complete control” and “total effective control” and “effective control” are used without it being clear what the expressions mean or whether there are differences between them. It may be that the adjectives are designed to add emphasis, but it is hard to see how they have a proper place in pleading the elements of the causes of action. [57] There are related expressions which add to the lack of precision. In paragraph 15, for example, the individual directors are alleged to have: (a) “exercised the power and authority” in an unstated way; (b) “to effect…complete control” in an unstated way over the business; and (c) “where appropriate, or necessary: supervision of the business”; and (d) that control, or that supervision, extended to all of the persons and entities connected with the business; and (e) that control or supervision “thereby authorised, expressly or impliedly, the conduct of Wen and Van Rooyen” and the other employees and practice entities; and (f) that control, or that supervision, authorised the entry into the approved agreements with third parties; (g) thereby, as a consequence of those agreements, and acting consistently with them, and in providing accountancy and consulting services to those third parties, authorised the conduct of Wen and Van Rooyen. [58] Thus, paragraph 15 is a perplexing jumble of words and concepts. The point seems to be that the ‘director partners’ exercised power and authority, and that power and authority effected ‘complete control’ and supervision over the business, and that complete control authorised the conduct of Mr Yin and Mr Van Rooyen. That sequences is said to have authorised Mr Yin and Mr Chen’s entry into the agreements, and the conduct of Mr Yin and Mr Chen (or perhaps Mr Yin and Mr Van Rooyen) in entering into the agreements, and acting consistently with them, and in providing accounting services. And so, some unstated ‘power and authority’ is alleged to have led to complete control and supervision, and that, in turn, has led to authorisation of the conduct of Mr Wen and Mr Van Rooyen. That is a rather abstract sequence. Absent from the sequence are any allegations of material facts. Conclusions [59] For the reasons explained, the statement of claim is flawed. [60] The defendants seek orders that: 30 Defendants’ submissions at [95]-[97]. -- 15 of 16 -- 16 (a) the claim and statement of claim be set aside as against the defendants other than Mazars (Qld) Pty Ltd, Mr Wen and Mr Yin; (b) the claim and statement of claim be struck out as against Mazars (Qld) Pty Ltd, Mr Wen and Mr Yin; and (c) leave to replead be limited to the claims against Mazars (Qld) Pty Ltd, Mr Wen and Mr Yin. [61] For the reasons stated above, I agree that the pleaded claims against the defendants other than Mazars (Qld) Pty Ltd, Mr Wen and Mr Yin have no prospects of success. And, there are, in any event, some significant pleading issues with the claims against Mazars (Qld) Pty Ltd, Mr Wen and Mr Yin. That means that the claim and statement of claim should be re-drawn. [62] Leave to replead should be limited to the claims against Mazars (Qld) Pty Ltd, Mr Wen and Mr Yin. If Antai Solar seeks wider leave to replead it can make such an application to the court – with its proposed new pleading. -- 16 of 16 --