VOTRAINT NO 1088 PTY LTD v THE COMMONWEALTH OF AUSTRALIA [2005] NSWCA 249

VOTRAINT NO 1088 PTY LTD v THE COMMONWEALTH OF AUSTRALIA [2005] NSWCA 249

The proposed second further amended statement of claim could not be characterised as doomed to fail. The pleading stated the relevant facts concerning the contract, the question and the answer, and the description of the question as a requisition rather than an enquiry was not critically important. Both the implied contractual warranty claim and, particularly, the common law negligence claim based on an answer given in a serious business context were arguable. The appellant was not required, as a matter of law at the pleading stage, to identify particular persons who knew the answer was false, and questions of reliance were matters for later interlocutory steps or trial rather than...

Jurisdiction
Australia
Judgment Date
15 July 2005
Procedural Posture
Civil Appeal Arising Out of Equity Division Proceedings for Damages in Relation to a Conveyancing Transaction / Application for Leave to Appeal Heard With Full Argument as on an Appeal From Refusal of Leave to Amend Pleadings and Dismissal of Proceedings
Outcome
Leave to appeal granted and appeal upheld; the orders of Young CJ in Equity made 8 November 2004 were set aside; leave was granted to file the proposed second further amended statement of claim; proceedings remitted to the Equity Division.
Legal Topics
['leave to Amend Pleadings' 'whether Amended Pleading Was Doomed to Fail' 'answers to Requisitions or Enquiries in a Conveyancing Transaction' 'implied Warranty to Prepare Answers With Reasonable Care and Skill' 'negligent Misstatement' 'vendor/purchaser Relationship' 'proof of Awareness by the Commonwealth' 'reliance']
['civil Procedure' 'conveyancing' 'contract Law' 'negligence'] ['leave to Amend Pleadings' 'whether Amended Pleading Was Doomed to Fail' 'answers to Requisitions or Enquiries in a Conveyancing Transaction' 'implied Warranty to Prepare Answers With Reasonable Care and Skill' 'negligent Misstatement' 'vendor/purchaser Relationship' 'proof of Awareness by the Commonwealth' 'reliance']

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Procedural Posture

Civil Appeal Arising Out of Equity Division Proceedings for Damages in Relation to a Conveyancing Transaction / Application for Leave to Appeal Heard With Full Argument as on an Appeal From Refusal of Leave to Amend Pleadings and Dismissal of Proceedings

Legal Issues

  1. 1 ['Whether the proposed second further amended statement of claim was doomed to fail so that leave to amend should be refused.' 'Whether an implied contractual warranty that answers to requisitions would be prepared with reasonable care and skill was arguable on the pleaded facts.' 'Whether a common law duty of care in negligence arising out of the vendor/purchaser relationship and the answer to the enquiry was arguable.' 'Whether proof that the answer was false required identification of particular persons, departments or corporations who knew the undisclosed information.' 'Whether issues of reliance made the proposed pleading foredoomed to failure.']

Ratio Decidendi

The proposed second further amended statement of claim could not be characterised as doomed to fail. The pleading stated the relevant facts concerning the contract, the question and the answer, and the description of the question as a requisition rather than an enquiry was not critically important. Both the implied contractual warranty claim and, particularly, the common law negligence claim based on an answer given in a serious business context were arguable. The appellant was not required, as a matter of law at the pleading stage, to identify particular persons who knew the answer was false, and questions of reliance were matters for later interlocutory steps or trial rather than...

Court Disposition

Leave to appeal granted and appeal upheld; the orders of Young CJ in Equity made 8 November 2004 were set aside; leave was granted to file the proposed second further amended statement of claim; proceedings remitted to the Equity Division.

Orders

  • ['Grant leave to appeal subject to the filing of a notice of appeal within seven days.' 'Appeal upheld.' 'Set aside the orders of Young CJ in Equity made 8 November 2004.' 'In lieu thereof order that the plaintiff have leave to file in the Equity Division its proposed second further amended statement of claim.'...