Gerring Pty Ltd v Mostert, Louis Lindes & Anor [1998] FCA 805

Gerring Pty Ltd v Mostert, Louis Lindes & Anor [1998] FCA 805

Leave was granted because the proposed further re-amended cross-claim was open to be read as pleading a fiduciary duty owed by Mr Kyle to the Mostert Parties, including Mr and Mrs Mostert personally, and as claiming their personal losses arising from advances to Japie rather than Japie's losses. The Court was not persuaded that the First Kyle Agreement or the alleged additional deficiencies showed that the pleading remained defective in the manner contended by Mr Kyle, subject to concessions made by the cross-claimants.

Jurisdiction
Australia
Judgment Date
10 July 1998
Procedural Posture
Application for Leave to Amend Cross Claim / Interlocutory Application Under O 13 R 2 of the Federal Court Rules for Leave to File a Further Re Amended Cross Claim
Outcome
Leave granted to file the further re-amended cross-claim as further amended by concessions made at the hearing; costs to be heard.
Legal Topics
['leave to Amend Pleading' 'further Re Amended Cross Claim' 'fiduciary Duty' 'shareholder or Company Loss' 'strike Out Objections']
['federal Civil Procedure' 'equity' 'corporations'] ['leave to Amend Pleading' 'further Re Amended Cross Claim' 'fiduciary Duty' 'shareholder or Company Loss' 'strike Out Objections']

Case Brief

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Procedural Posture

Application for Leave to Amend Cross Claim / Interlocutory Application Under O 13 R 2 of the Federal Court Rules for Leave to File a Further Re Amended Cross Claim

Legal Issues

  1. 1 ['Whether the cross-claimants should be granted leave to file the further re-amended cross-claim.' 'Whether the proposed further re-amended cross-claim still sought to recover losses of Japie Pty Ltd rather than personal losses of Mr and Mrs Mostert.' 'Whether the proposed pleading disclosed an arguable fiduciary duty owed by Mr Kyle to the Mostert Parties, including Mr and Mrs Mostert personally.' 'Whether objections based on causation, remoteness, non-recovery of funds, or other alleged deficiencies should prevent leave to amend.']

Ratio Decidendi

Leave was granted because the proposed further re-amended cross-claim was open to be read as pleading a fiduciary duty owed by Mr Kyle to the Mostert Parties, including Mr and Mrs Mostert personally, and as claiming their personal losses arising from advances to Japie rather than Japie's losses. The Court was not persuaded that the First Kyle Agreement or the alleged additional deficiencies showed that the pleading remained defective in the manner contended by Mr Kyle, subject to concessions made by the cross-claimants.

Court Disposition

Leave granted to file the further re-amended cross-claim as further amended by concessions made at the hearing; costs to be heard.

Orders

  • ['The cross-claimants have leave to file the further re-amended cross-claim as further amended by concessions made at the hearing on 16 June 1998.' 'The cross-claimants and the first cross-respondent be heard as to costs.']