Beyond Films Ltd v Gary Hamilton & Anor [2003] NSWSC 342

Beyond Films Ltd v Gary Hamilton & Anor [2003] NSWSC 342

Paragraphs 23 to 27 of the statement of claim as originally pleaded related the alleged representations only to the defendants' prospective future business, and because the first defendant had not then embarked upon his own business the conduct was not "in trade or commerce" for the purposes of s 42(1) of the Fair Trading Act 1987. The Master's refusal to strike out those paragraphs was therefore set aside. However, the proposed amendment arguably alleged an existing business conducted by the first defendant, because refraining from taking action for the plaintiff might arguably constitute the commencement of a competing business; leave to amend was therefore granted.

Jurisdiction
Australia
Judgment Date
10 April 2003
Procedural Posture
Appeal From Decision of a Master Refusing to Strike Out Paragraphs of a Statement of Claim, With Notice of Motion for Leave to Amend / Appeal and Application for Leave to Amend Statement of Claim
Outcome
Appeal allowed with costs; leave to amend statement of claim granted with no order as to costs on the notice of motion.
Legal Topics
['misleading or Deceptive Conduct' 'meaning of "in Trade or Commerce"' 'strike Out of Pleadings' 'appeal From Master to Single Judge' 'leave to Amend Statement of Claim']
['trade Practices and Consumer Protection' 'civil Procedure'] ['misleading or Deceptive Conduct' 'meaning of "in Trade or Commerce"' 'strike Out of Pleadings' 'appeal From Master to Single Judge' 'leave to Amend Statement of Claim']

Case Brief

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Procedural Posture

Appeal From Decision of a Master Refusing to Strike Out Paragraphs of a Statement of Claim, With Notice of Motion for Leave to Amend / Appeal and Application for Leave to Amend Statement of Claim

Legal Issues

  1. 1 ['Whether the requirement that conduct be "in trade or commerce" in s 42(1) of the Fair Trading Act 1987 requires present commercial activity by the person accused of the conduct rather than prospective commercial activity.' 'Whether paragraphs 23 to 27 of the statement of claim, as originally pleaded, alleged conduct in trade or commerce.' 'Whether the plaintiff should be granted leave to amend the statement of claim to allege existing commercial activity by the first defendant.' "What principles apply on an appeal from a Master's discretionary decision to a judge of the Supreme Court."]

Ratio Decidendi

Paragraphs 23 to 27 of the statement of claim as originally pleaded related the alleged representations only to the defendants' prospective future business, and because the first defendant had not then embarked upon his own business the conduct was not "in trade or commerce" for the purposes of s 42(1) of the Fair Trading Act 1987. The Master's refusal to strike out those paragraphs was therefore set aside. However, the proposed amendment arguably alleged an existing business conducted by the first defendant, because refraining from taking action for the plaintiff might arguably constitute the commencement of a competing business; leave to amend was therefore granted.

Court Disposition

Appeal allowed with costs; leave to amend statement of claim granted with no order as to costs on the notice of motion.

Orders

  • ['The appeal is allowed.' 'The order of the Master is set aside.' 'Paragraphs 23 to 27 of the statement of claim are struck out.' "The plaintiff is to pay the defendants' costs of the appeal and the costs of the application before the Master." 'The notice of motion is allowed.' 'The plaintiff is given leave to amend...