Reiffel v ACN 075 839 226 Ltd [2001] FCA 509

Reiffel v ACN 075 839 226 Ltd [2001] FCA 509

Paragraph 28 was deficient because the only material fact alleged against the fourth respondent was that he authorised the issue of the prospectus. That fact alone would not establish accessorial liability under s 75B of the Trade Practices Act 1974 (Cth), because the pleading did not allege the fourth respondent's knowledge of the essential facts constituting the alleged s 52 contraventions. The allegations against Gresham were therefore struck out, but leave was granted to amend paragraph 28 within fourteen days, limited to supplementing the existing allegation.

Jurisdiction
Australia
Judgment Date
03 May 2001
Procedural Posture
Representative Claim Alleging Misleading Statements in a Prospectus and Accessorial Liability Under the Trade Practices Act 1974 (cth) / Fourth Respondent's Notice of Motion to Strike Out or Alternatively Seek Further and Better Particulars of Paragraph 28 of the Second Further Amended Statement of Claim
Outcome
Fourth respondent's motion allowed in part; allegations in paragraph 28 against Gresham struck out, with limited leave to amend, and costs ordered.
Legal Topics
['misleading or Deceptive Conduct' 'accessorial Liability' 'pleading Deficiencies' 'strike Out Application' 'further and Better Particulars']
['trade Practices' 'civil Procedure'] ['misleading or Deceptive Conduct' 'accessorial Liability' 'pleading Deficiencies' 'strike Out Application' 'further and Better Particulars']

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Procedural Posture

Representative Claim Alleging Misleading Statements in a Prospectus and Accessorial Liability Under the Trade Practices Act 1974 (cth) / Fourth Respondent's Notice of Motion to Strike Out or Alternatively Seek Further and Better Particulars of Paragraph 28 of the Second Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether paragraph 28 of the Second Further Amended Statement of Claim was deficient for failing to plead that the fourth respondent knew the essential facts constituting the alleged contraventions of s 52 of the Trade Practices Act 1974 (Cth).' 'Whether authorisation of the issue of a prospectus alone could establish accessorial liability pursuant to s 75B of the Trade Practices Act 1974 (Cth).' 'Whether the applicant should be granted leave to amend paragraph 28 and on what terms.' "What costs order should be made on the fourth respondent's motion."]

Ratio Decidendi

Paragraph 28 was deficient because the only material fact alleged against the fourth respondent was that he authorised the issue of the prospectus. That fact alone would not establish accessorial liability under s 75B of the Trade Practices Act 1974 (Cth), because the pleading did not allege the fourth respondent's knowledge of the essential facts constituting the alleged s 52 contraventions. The allegations against Gresham were therefore struck out, but leave was granted to amend paragraph 28 within fourteen days, limited to supplementing the existing allegation.

Court Disposition

Fourth respondent's motion allowed in part; allegations in paragraph 28 against Gresham struck out, with limited leave to amend, and costs ordered.

Orders

  • ['The words in par 28 of the Second further Amended Statement of Claim "each of" before "Veron" and "and Gresham" after "Veron" be struck out.' 'Leave is granted to the applicant to amend par 28 of the Second Further Amended Statement of Claim within fourteen days of the date of this judgment on terms that such...