Franklin v GHF Pty Ltd [2014] FCA 1414

Franklin v GHF Pty Ltd [2014] FCA 1414

The proposed new claims by Genesis and Bain against GFC Hobart Pty Ltd are not futile or untenable as there is an arguable basis that GFC may have liability for representations made by its directors, employees or agents pursuant to s 84(2) of the TPA and that, if agency relationships are established, Genesis and Bain may be entitled to indemnity. Though some prejudice to applicants may arise, adequate explanation for the amendments exists, the factual substratum is not substantially changed, and careful case management can mitigate delay or disruption. Leave to amend is granted in exercise of the Court's discretion under r 16.53 of the Federal Court Rules 2011 (Cth).

Jurisdiction
Australia
Judgment Date
23 December 2014
Procedural Posture
Interlocutory Application / Application for Leave to Amend Defence and Cross Claim Prior to Trial
Outcome
Leave to amend defence and cross claim granted subject to conditions; costs awarded to applicants for the interlocutory application and costs thrown away.
Legal Topics
['amendment of Pleadings' 'apportionable Claims' 'misleading and Deceptive Conduct' 'proportionate Liability' 'agency' 'indemnity' 'case Management']
['practice and Procedure' 'civil Liability' 'consumer Law'] ['amendment of Pleadings' 'apportionable Claims' 'misleading and Deceptive Conduct' 'proportionate Liability' 'agency' 'indemnity' 'case Management']

Case Brief

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Procedural Posture

Interlocutory Application / Application for Leave to Amend Defence and Cross Claim Prior to Trial

Legal Issues

  1. 1 ['Whether leave should be granted to amend the defence and cross claim to add new alternative claims against GFC Hobart Pty Ltd' 'Whether there is adequate explanation for delay in seeking the amendments' 'Whether the proposed claims are futile' 'Whether there will be prejudice to applicants if amendments are allowed']

Ratio Decidendi

The proposed new claims by Genesis and Bain against GFC Hobart Pty Ltd are not futile or untenable as there is an arguable basis that GFC may have liability for representations made by its directors, employees or agents pursuant to s 84(2) of the TPA and that, if agency relationships are established, Genesis and Bain may be entitled to indemnity. Though some prejudice to applicants may arise, adequate explanation for the amendments exists, the factual substratum is not substantially changed, and careful case management can mitigate delay or disruption. Leave to amend is granted in exercise of the Court's discretion under r 16.53 of the Federal Court Rules 2011 (Cth).

Court Disposition

Leave to amend defence and cross claim granted subject to conditions; costs awarded to applicants for the interlocutory application and costs thrown away.

Orders

  • ['The first and second respondents be granted leave to file and serve an amended defence in terms of the proposed Further Amended Defence to the Amended Statement of Claim, being exhibit PJT-1 to the affidavit of Patrick John Tydde sworn on 3 December 2014.' 'The first and second respondents be granted leave to file...