Karam v ANZ Banking Group Limited [2000] NSWSC 596

Karam v ANZ Banking Group Limited [2000] NSWSC 596

Although joinder of KBF under Pt 8 would not be retroactive because of Pt 8 r11(3), the plaintiffs satisfied s237(2) of the Corporations Law and were granted leave to bring a statutory derivative action. Once leave was granted, the plaintiffs became entitled to sue in a derivative capacity, engaging Pt 20 r4(4) of the Supreme Court Rules. The amendments were therefore permitted and, because no contrary order was made under Pt 20 r4(5A), related back to the filing date of the statement of claim, 22 April 1997. The justice of the case favoured allowing the amendment, and applying Pt 20 r4 gave effect to the overriding purpose in Pt 1 r3.

Jurisdiction
Australia
Judgment Date
28 June 2000
Procedural Posture
Equity Proceeding; Application to Amend Pleadings and for Leave to Bring a Statutory Derivative Action / Interlocutory Application After Trial Commenced
Outcome
Leave granted under Pt 20 r4 to amend.
Legal Topics
['amendment of Pleadings' 'joinder of Parties' 'statutory Derivative Action' 'common Law Derivative Action' 'relation Back of Amendments' 'overriding Purpose of Supreme Court Rules' 'costs']
['civil Procedure' 'corporations Law' 'limitation of Actions'] ['amendment of Pleadings' 'joinder of Parties' 'statutory Derivative Action' 'common Law Derivative Action' 'relation Back of Amendments' 'overriding Purpose of Supreme Court Rules' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceeding; Application to Amend Pleadings and for Leave to Bring a Statutory Derivative Action / Interlocutory Application After Trial Commenced

Legal Issues

  1. 1 ['Whether the plaintiffs should be permitted to amend the statement of claim so that Karam Bros. Footwear Pty Limited could sue directly or so the plaintiffs could sue derivatively in respect of alleged loss to the company.' 'Whether joinder under Pt 8 r8 or Pt 8 r2 of the Supreme Court Rules could be made retroactive notwithstanding Pt 8 r11(3).' 'Whether Pt 20 r4(4) of the Supreme Court Rules applied because the plaintiffs became entitled to sue in a statutory derivative capacity under Pt 2F.1A of the Corporations Law.' 'Whether the statutory derivative action displaced the common law derivative action exceptions to Foss v Harbottle in relation to accrued rights.' 'Whether any amendment under Pt 20 r4 would relate back to the filing date of the statement of claim and defeat a limitation objection except as at that date.']

Ratio Decidendi

Although joinder of KBF under Pt 8 would not be retroactive because of Pt 8 r11(3), the plaintiffs satisfied s237(2) of the Corporations Law and were granted leave to bring a statutory derivative action. Once leave was granted, the plaintiffs became entitled to sue in a derivative capacity, engaging Pt 20 r4(4) of the Supreme Court Rules. The amendments were therefore permitted and, because no contrary order was made under Pt 20 r4(5A), related back to the filing date of the statement of claim, 22 April 1997. The justice of the case favoured allowing the amendment, and applying Pt 20 r4 gave effect to the overriding purpose in Pt 1 r3.

Court Disposition

Leave granted under Pt 20 r4 to amend.

Orders

  • ['Leave granted to the plaintiffs to bring a statutory derivative action pursuant to Pt 2F.1A of the Corporations Law, the Court being satisfied as to the matters in s237(2).' 'Leave granted to amend the statement of claim under Pt 20 r4(4).' 'No order made to the contrary under Pt 20 r4(5A), so the amendment dates...