Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 212

Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 212

Leave to amend the s 52 claim is granted as the claim is not sufficiently untenable to justify summary dismissal; many allegations are matters for evidence, and existing legal principles do not preclude the negligence or s 52 claims proceeding at this stage. Contractual exclusions in supply agreements are relevant to, but do not conclusively determine, the existence of a duty of care in tort to third parties.

Jurisdiction
Australia
Judgment Date
03 March 2000
Procedural Posture
Application for Leave to Amend Statement of Claim / Interlocutory—application for Leave to Amend Pleadings
Outcome
Leave to amend granted; costs in the cause; other costs reserved
Legal Topics
['leave to Amend Pleadings' 'section 52 Claim Under Trade Practices Act 1974 (cth)' 'negligence—economic Loss—duty of Care' 'contractual Exclusion of Liability—effect on Tort Duty' 'misleading or Deceptive Conduct' 'representative Proceedings']
['practice and Procedure' 'negligence' 'trade Practices'] ['leave to Amend Pleadings' 'section 52 Claim Under Trade Practices Act 1974 (cth)' 'negligence—economic Loss—duty of Care' 'contractual Exclusion of Liability—effect on Tort Duty' 'misleading or Deceptive Conduct' 'representative Proceedings']

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Procedural Posture

Application for Leave to Amend Statement of Claim / Interlocutory—application for Leave to Amend Pleadings

Legal Issues

  1. 1 ['Whether leave should be granted to amend the s 52 Trade Practices Act 1974 claim' 'Whether the proposed s 52 claim is so untenable as to warrant summary dismissal' 'Whether a duty of care in negligence for economic loss can be owed to third parties despite contractual exclusions in the supply chain' 'Whether amendments should be allowed only if verified by affidavit']

Ratio Decidendi

Leave to amend the s 52 claim is granted as the claim is not sufficiently untenable to justify summary dismissal; many allegations are matters for evidence, and existing legal principles do not preclude the negligence or s 52 claims proceeding at this stage. Contractual exclusions in supply agreements are relevant to, but do not conclusively determine, the existence of a duty of care in tort to third parties.

Court Disposition

Leave to amend granted; costs in the cause; other costs reserved

Orders

  • ["Applicants have leave to deliver an Amended Statement of Claim, Application and Particulars substantially in the form of Exhibits 'NSB 1', 'NSB 2' and 'NSB 3' to the Affidavit of Nicholas Styant-Browne sworn on 23 December 1999." "The costs of the parties of the applicants' motion dated 24 December 1999 be costs...