Falzon v Perpetual Limited; Venacom Pty Limited v Perpetual Limited [2010] NSWSC 582

Falzon v Perpetual Limited; Venacom Pty Limited v Perpetual Limited [2010] NSWSC 582

Leave to amend is granted in part: amendments introducing claims in conversion and money had and received are reasonably arguable and permitted, but proposed amendments for breach of trust, statutory breach, misleading or deceptive conduct, and negligence are not reasonably arguable and are refused. Plaintiffs’ contention that they are entitled as 'Voluntary Holders' solely by ownership of misdirected funds is not accepted. For the Venacom matter, assignment of causes of action is reasonably arguable and permitted, subject to redrafting.

Jurisdiction
Australia
Judgment Date
04 June 2010
Procedural Posture
Procedural and Other Rulings / Notice of Motion for Leave to Amend Pleadings
Outcome
Amendment allowed in part.
Legal Topics
['amendment of Pleadings' 'conversion' 'money Had and Received' 'trust Law' 'assignment of Causes of Action' 'statutory Construction' 'misleading or Deceptive Conduct' 'negligence']
['practice and Procedure' 'equity' 'trusts'] ['amendment of Pleadings' 'conversion' 'money Had and Received' 'trust Law' 'assignment of Causes of Action' 'statutory Construction' 'misleading or Deceptive Conduct' 'negligence']

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Procedural Posture

Procedural and Other Rulings / Notice of Motion for Leave to Amend Pleadings

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted leave to amend their Statements of Claim to introduce new claims and recast existing claims' 'Whether the amendments relating to claims in conversion, money had and received, breach of trust, fiduciary duty, statutory breaches, and negligence are reasonably arguable' "Whether the plaintiffs fall within the definition of 'Unit Holder' or 'Voluntary Holder' under the relevant deeds and statutes" 'Whether Mr Cincotta’s authority or conduct binds the trustees or gives rise to trust or contractual obligations' 'Whether assigned causes of action to a new plaintiff are effective at law']

Ratio Decidendi

Leave to amend is granted in part: amendments introducing claims in conversion and money had and received are reasonably arguable and permitted, but proposed amendments for breach of trust, statutory breach, misleading or deceptive conduct, and negligence are not reasonably arguable and are refused. Plaintiffs’ contention that they are entitled as 'Voluntary Holders' solely by ownership of misdirected funds is not accepted. For the Venacom matter, assignment of causes of action is reasonably arguable and permitted, subject to redrafting.

Court Disposition

Amendment allowed in part.

Orders

  • ['Leave to amend the Statement of Claim in accordance with the judgment (conversion and money had and received claims permitted).' 'Other proposed amendments (breach of statutory duty, trust, fiduciary duty, misleading/deceptive conduct, negligence) not permitted.' 'Plaintiffs to undertake redrafting of pleadings.'...