Melewar Steel Ventures Ltd v Opes Prime Stockbroking Ltd; Terpu v Opes Prime Stockbroking Ltd [2009] NSWSC 22

Melewar Steel Ventures Ltd v Opes Prime Stockbroking Ltd; Terpu v Opes Prime Stockbroking Ltd [2009] NSWSC 22

Leave to file the proposed further amended statements of claim was refused because, although some proposed contract, trust-by-contract, security, mistake and alternative statutory claims were not shown to be untenable, the proposed pleadings contained material deficiencies: the statutory-response trust claim could not succeed, fiduciary duty lacked a pleaded factual foundation, relevant interest and knowledge allegations were inadequately particularised, constructive knowledge was insufficient for Barnes v Addy and statutory accessorial claims, and the estoppel pleaded was not an available form of estoppel.

Jurisdiction
Australia
Judgment Date
05 February 2009
Procedural Posture
Procedural Ruling on Applications for Leave to File Further Amended Statements of Claim / Motion for Leave to Amend Pleadings
Outcome
Leave to file the proposed further amended statement of claim in proceedings 2149/08 was refused, with a like outcome for the proposed further amended statement of claim in proceedings 2204/08.
Legal Topics
['leave to Amend Statement of Claim' 'untenable Pleading' 'securities Lending Agreement' 'beneficial Ownership of Shares' 'trust and Constructive Trust' 'mortgage and Security' 'fiduciary Duty' 'barnes V Addy Knowing Receipt' 'accessorial Liability for Statutory Misconduct' 'relevant Interest in Shares' 'estoppel']
['civil Procedure' 'corporations' 'equity' 'contract' 'misleading or Deceptive Conduct'] ['leave to Amend Statement of Claim' 'untenable Pleading' 'securities Lending Agreement' 'beneficial Ownership of Shares' 'trust and Constructive Trust' 'mortgage and Security' 'fiduciary Duty' 'barnes V Addy Knowing Receipt' 'accessorial Liability for Statutory Misconduct' 'relevant Interest in Shares' 'estoppel']

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Procedural Posture

Procedural Ruling on Applications for Leave to File Further Amended Statements of Claim / Motion for Leave to Amend Pleadings

Legal Issues

  1. 1 ["Whether the plaintiffs' proposed further amended statements of claim should be permitted under the General Steel test." 'Whether allegations that express facility terms displaced inconsistent GMSLA terms were so untenable that they could not proceed.' 'Whether allegations that shares were transferred by way of security and that the facility agreement operated as a mortgage were objectionable.' 'Whether statements made in response to a statutory inquiry under s 672B of the Corporations Act amounted to a declaration of trust.' 'Whether the proposed pleading adequately alleged a fiduciary duty owed by Opes to Melewar.' 'Whether alternative statutory misleading or deceptive conduct claims could be pleaded.' 'Whether claims based on relevant interests in shares, Barnes v Addy knowing receipt, knowing involvement in statutory misconduct, and estoppel were adequately pleaded.']

Ratio Decidendi

Leave to file the proposed further amended statements of claim was refused because, although some proposed contract, trust-by-contract, security, mistake and alternative statutory claims were not shown to be untenable, the proposed pleadings contained material deficiencies: the statutory-response trust claim could not succeed, fiduciary duty lacked a pleaded factual foundation, relevant interest and knowledge allegations were inadequately particularised, constructive knowledge was insufficient for Barnes v Addy and statutory accessorial claims, and the estoppel pleaded was not an available form of estoppel.

Court Disposition

Leave to file the proposed further amended statement of claim in proceedings 2149/08 was refused, with a like outcome for the proposed further amended statement of claim in proceedings 2204/08.

Orders

  • ['Leave for Melewar to file the proposed further amended statement of claim in proceedings 2149/08 will be refused.' 'There will be a like outcome in respect of the proposed further amended statement of claim sought to be filed by Terpu and Valleybrook in proceedings 2204/08.' 'The plaintiffs should pay the costs of...