Manday Investments Pty Ltd v Commonwealth Bank of Australia [2011] FCA 681

Manday Investments Pty Ltd v Commonwealth Bank of Australia [2011] FCA 681

Leave to amend was refused because the proposed misrepresentation claim was not based on the same or substantially the same facts as the existing pleaded valuation and contractual breach claim: the alleged representation facts were entirely new, the oral representations were non-specific, the claim appeared weak or likely futile on the Bank correspondence, and delay of nearly 11 years supported an inference of prejudice. Indemnity costs for the abandoned unconscionable conduct claim were refused because, although the claim would face considerable difficulty and was sensibly discontinued, it was not so inevitably hopeless and unmeritorious from inception that it should never have been...

Jurisdiction
Australia
Judgment Date
15 June 2011
Procedural Posture
Application for Leave to Amend Pleadings and Costs Application / Interlocutory Motion
Outcome
The applicants' motion to amend the pleading was dismissed; respondents received party-party costs thrown away for the abandoned unconscionable conduct claim and costs of the motion; indemnity costs payable forthwith were refused.
Legal Topics
['leave to Amend Pleadings' 'federal Court Rules O 13 R 2' 'same or Substantially the Same Facts' 'limitation Period' 'prejudice From Delay' 'indemnity Costs' 'discontinuance of Part of Claim']
['practice and Procedure' 'costs' 'misleading or Deceptive Conduct' 'unconscionable Conduct'] ['leave to Amend Pleadings' 'federal Court Rules O 13 R 2' 'same or Substantially the Same Facts' 'limitation Period' 'prejudice From Delay' 'indemnity Costs' 'discontinuance of Part of Claim']

Case Brief

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Procedural Posture

Application for Leave to Amend Pleadings and Costs Application / Interlocutory Motion

Legal Issues

  1. 1 ['Whether the proposed misleading or deceptive conduct claim arose out of the same or substantially the same facts as those already pleaded within Federal Court Rules O 13 r 2(7).' 'Whether it was just to grant leave to amend after any relevant limitation period had expired.' 'Whether the proposed amendment was weak or futile because of lack of specificity and the terms of the Bank correspondence.' 'Whether the effluxion of time would prejudice the Bank in defending the proposed misrepresentation claim.' 'Whether the abandoned unconscionable conduct claim warranted indemnity costs payable forthwith.']

Ratio Decidendi

Leave to amend was refused because the proposed misrepresentation claim was not based on the same or substantially the same facts as the existing pleaded valuation and contractual breach claim: the alleged representation facts were entirely new, the oral representations were non-specific, the claim appeared weak or likely futile on the Bank correspondence, and delay of nearly 11 years supported an inference of prejudice. Indemnity costs for the abandoned unconscionable conduct claim were refused because, although the claim would face considerable difficulty and was sensibly discontinued, it was not so inevitably hopeless and unmeritorious from inception that it should never have been...

Court Disposition

The applicants' motion to amend the pleading was dismissed; respondents received party-party costs thrown away for the abandoned unconscionable conduct claim and costs of the motion; indemnity costs payable forthwith were refused.

Orders

  • ["The applicants' motion to amend its pleading in the manner set out in the minute dated 4 May 2011 will be dismissed." 'The applicants do pay the costs of the respondents thrown away by reason of the claim as to unconscionable conduct advanced by the applicants and now abandoned, such costs to be taxed (if not...