The Trust Company Ltd v VISA Global Logistics Pty Ltd [2017] NSWSC 197

The Trust Company Ltd v VISA Global Logistics Pty Ltd [2017] NSWSC 197

The proposed amended pleading did not sufficiently allege the incapacity or inability of VISA to protect itself from economic loss due to the builder's conduct, as clarified in Brookfield. Reliance, knowledge and assumption of responsibility are not enough: the special element of vulnerability, through inability to protect oneself, must be pleaded. As this was missing, leave to amend was refused.

Jurisdiction
Australia
Judgment Date
07 March 2017
Procedural Posture
Equity Commercial List / Leave to Amend Defence to Cross Claim
Outcome
Leave to amend refused
Legal Topics
['duty of Care' 'economic Loss' 'vulnerability' 'pleading Amendments']
['practice and Procedure' 'torts'] ['duty of Care' 'economic Loss' 'vulnerability' 'pleading Amendments']

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Procedural Posture

Equity Commercial List / Leave to Amend Defence to Cross Claim

Legal Issues

  1. 1 ['Whether defendant should be granted leave to amend its defence to allege a duty of care owed by the builder to the cross-claimant' 'Whether it is necessary to plead vulnerability of the cross-claimant to economic loss' "Whether the proposed pleading demonstrates VISA's inability to protect itself from loss"]

Ratio Decidendi

The proposed amended pleading did not sufficiently allege the incapacity or inability of VISA to protect itself from economic loss due to the builder's conduct, as clarified in Brookfield. Reliance, knowledge and assumption of responsibility are not enough: the special element of vulnerability, through inability to protect oneself, must be pleaded. As this was missing, leave to amend was refused.

Court Disposition

Leave to amend refused

Orders

  • ['Leave to file and serve a second further amended cross-claim list response refused, as presently formulated.' 'Court will reconsider if a reformulated response is filed.']