Fried v National Australia Bank Ltd [2000] FCA 910

Fried v National Australia Bank Ltd [2000] FCA 910

The amendments sought do not create inconsistent claims, nor do they infringe the doctrines of election or approbation and reprobation, as the claims against Bendigo Bank and the Firm are not incompatible and no relevant election barring amendment is present. No prejudice arises for the respondents, and leave to amend is granted.

Parties
First Applicant: TAB Fried; Second Applicant: Eva Fried; Third Applicant: David Fried; Fourth Applicant: Compack Packaging Employee Share Plan Pty Ltd (ACN 062 925 393); Fifth Applicant: EvATAB Investments Pty Ltd (formerly TED Engineering Investment Pty Ltd) (ACN 006 392 972); Sixth Applicant: Invotin Pty Ltd (ACN 006 786 394); Seventh Applicant: Windina Pty Ltd (ACN 074 572 204); Eighth Applicant: EvATAB Leasing Pty Ltd (ACN 074 572 204); First Respondent: National Australia Bank Limited (ACN 004 044 937); Second Respondent & First Cross Claimant: Benni Aroni; Third Respondent & Second Cross Claimant: Adrian Colman; Fourth Respondent & Third Cross Claimant: Richard Starling Cornish; Fifth Respondent & Fourth Cross Claimant: Mark Wollan; Sixth Respondent & Fifth Cross Claimant: Norman Samuel Fryde; Seventh Respondent & Sixth Cross Claimant: Bruno John Charlesworth; Eighth Respondent & Seventh Cross Claimant: Bruce David Josem; Ninth Respondent & Eighth Cross Claimant: Effie Kavadas; Tenth Respondent: TED Engineering Australia Limited (ACN 006 790 067); Eleventh Respondent: Bendigo Bank Limited (ACN 068 049 178); Cross Claimant/various Cross Respondent: W F Titchener & Co Pty Ltd; Cross Respondent/tenth Cross Respondent: Victorian Lawyers RPA Limited
Jurisdiction
Australia
Judgment Date
07 July 2000
Procedural Posture
Interlocutory Application / Ruling on Application for Leave to Amend Statement of Claim After Trial Commenced
Outcome
Leave to amend granted
Legal Topics
Pleading Amendments, Doctrine of Election, Doctrine of Approbation and Reprobation, Partnership Liability, Breach of Trust, Banking Law
Practice and Procedure Pleading Amendments Doctrine of Election Doctrine of Approbation and Reprobation Partnership Liability Breach of Trust Banking Law

Case Brief

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Parties

TAB Fried

First Applicant

Eva Fried

Second Applicant

David Fried

Third Applicant

Compack Packaging Employee Share Plan Pty Ltd (ACN 062 925 393)

Fourth Applicant

EvATAB Investments Pty Ltd (formerly TED Engineering Investment Pty Ltd) (ACN 006 392 972)

Fifth Applicant

Invotin Pty Ltd (ACN 006 786 394)

Sixth Applicant

Windina Pty Ltd (ACN 074 572 204)

Seventh Applicant

EvATAB Leasing Pty Ltd (ACN 074 572 204)

Eighth Applicant

National Australia Bank Limited (ACN 004 044 937)

First Respondent

Benni Aroni

Second Respondent & First Cross Claimant

Adrian Colman

Third Respondent & Second Cross Claimant

Richard Starling Cornish

Fourth Respondent & Third Cross Claimant

Mark Wollan

Fifth Respondent & Fourth Cross Claimant

Norman Samuel Fryde

Sixth Respondent & Fifth Cross Claimant

Bruno John Charlesworth

Seventh Respondent & Sixth Cross Claimant

Bruce David Josem

Eighth Respondent & Seventh Cross Claimant

Effie Kavadas

Ninth Respondent & Eighth Cross Claimant

TED Engineering Australia Limited (ACN 006 790 067)

Tenth Respondent

Bendigo Bank Limited (ACN 068 049 178)

Eleventh Respondent

W F Titchener & Co Pty Ltd

Cross Claimant/various Cross Respondent

Victorian Lawyers RPA Limited

Cross Respondent/tenth Cross Respondent

Procedural Posture

Interlocutory Application / Ruling on Application for Leave to Amend Statement of Claim After Trial Commenced

Legal Issues

  1. 1 Whether applicants should be granted leave to amend their further amended statement of claim after trial commencement
  2. 2 Whether such amendments create inconsistent claims barred by the doctrine of election or approbation and reprobation

Ratio Decidendi

The amendments sought do not create inconsistent claims, nor do they infringe the doctrines of election or approbation and reprobation, as the claims against Bendigo Bank and the Firm are not incompatible and no relevant election barring amendment is present. No prejudice arises for the respondents, and leave to amend is granted.

Court Disposition

Leave to amend granted

Orders

  • Applicants granted leave to amend their further amended statement of claim by deleting from pars 13, 14 and 15 the words 'the Firm by its partner' and from par 82 the reference to pars 13, 14 and 15.
  • Respondents granted leave to amend their defences and cross-claims to the extent necessary to meet these amendments.