Investa Properties Pty Ltd v Nankervis (No 2) [2013] FCA 468

Investa Properties Pty Ltd v Nankervis (No 2) [2013] FCA 468

Leave to file the Draft Second Proposed Further Amended Statement of Claim is refused because the applicants failed to plead facts supporting the existence of a fiduciary duty between the second respondent and the first applicant and did not establish that a valid appointment or contract existed for Lot 170 under the statutory regime. The applicants' pleading fails to sustain claims either contractually or on fiduciary duty grounds based on the facts and legislative requirements.

Jurisdiction
Australia
Judgment Date
17 May 2013
Procedural Posture
Application for Leave to Amend Statement of Claim / Ruling on Application for Leave to Amend Pleadings
Outcome
Leave to file Draft Second Proposed Further Amended Statement of Claim refused. Costs awarded to respondents.
Legal Topics
['amendment to Pleadings' 'fiduciary Duty of Agents' 'corporate Fiduciary Duty' 'real Estate Agent Statutory Appointment' 'statutory Compliance for Agent Appointment']
['practice and Procedure' 'equity' 'real Property'] ['amendment to Pleadings' 'fiduciary Duty of Agents' 'corporate Fiduciary Duty' 'real Estate Agent Statutory Appointment' 'statutory Compliance for Agent Appointment']

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Procedural Posture

Application for Leave to Amend Statement of Claim / Ruling on Application for Leave to Amend Pleadings

Legal Issues

  1. 1 ['Whether leave should be granted to file the Draft Second Proposed Further Amended Statement of Claim' 'Whether a fiduciary duty owed by a real estate agent to a subsidiary company also extends to its holding company' 'Whether statutory requirements for appointment of a real estate agent under PAMDA were satisfied' 'Whether PAMDA terms and Code of Conduct can be implied into contracts where appointment is ineffective']

Ratio Decidendi

Leave to file the Draft Second Proposed Further Amended Statement of Claim is refused because the applicants failed to plead facts supporting the existence of a fiduciary duty between the second respondent and the first applicant and did not establish that a valid appointment or contract existed for Lot 170 under the statutory regime. The applicants' pleading fails to sustain claims either contractually or on fiduciary duty grounds based on the facts and legislative requirements.

Court Disposition

Leave to file Draft Second Proposed Further Amended Statement of Claim refused. Costs awarded to respondents.

Orders

  • ['Leave to file the Draft Second Proposed Further Amended Statement of Claim be refused.' 'The applicants pay the costs of the respondents of and incidental to the application for leave to file the Draft Second Proposed Further Amended Statement of Claim, such costs to be taxed if not otherwise agreed.']