Perazzoli v BankSA (No 5) [2018] FCA 1187

Perazzoli v BankSA (No 5) [2018] FCA 1187

Leave to amend the Second Amended Originating Application and Second Amended Statement of Claim was refused because proposed pleadings regarding contractual engagements, fiduciary duties, and fraud were inadequately particularised, embarrassing or likely to cause prejudice, and/or failed to fulfil the necessary requirements under the Court's rules and Part IVA regime. Applicants were granted liberty to amend in a different form, but not in the terms proposed.

Parties
First Applicant: Galliano Perazzoli; Second Applicant: Moreno Ferluga; Third Applicant: William Johnson; First Respondent: BankSA, a Division of Westpac Banking Corporation Limited ABN 33 007 141; Second Respondent: Michael Christopher Samra; Third Respondent: Michael Christopher Samra as trustee of the Michael Christopher Samra Family Trust trading as Adelaide Lending Centre ABN 69 787 153 821; Fourth Respondent: Adelaide Lending Centre Group Pty Ltd (in liquidation) ACN 088 613 156
Jurisdiction
Australia
Judgment Date
10 August 2018
Procedural Posture
Application (interlocutory) for Leave to Amend / Interlocutory Judgment Prior to Trial
Outcome
Leave to amend refused in proposed form; liberty to propose further amendments in different form; joinder and disjoinder of parties ordered.
Legal Topics
Pleading Requirements, Representative Proceedings, Amendment of Originating Process, Equitable Claims, Fiduciary Duties, Fraudulent Misrepresentation, Banker Liability, Constructive Trusts, Knowledge in Barnes V Addy Claims
Practice and Procedure Equity Corporations Law Pleading Requirements Representative Proceedings Amendment of Originating Process Equitable Claims Fiduciary Duties +4 more

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Parties

Galliano Perazzoli

First Applicant

Moreno Ferluga

Second Applicant

William Johnson

Third Applicant

BankSA, a Division of Westpac Banking Corporation Limited ABN 33 007 141

First Respondent

Michael Christopher Samra

Second Respondent

Michael Christopher Samra as trustee of the Michael Christopher Samra Family Trust trading as Adelaide Lending Centre ABN 69 787 153 821

Third Respondent

Adelaide Lending Centre Group Pty Ltd (in liquidation) ACN 088 613 156

Fourth Respondent

Procedural Posture

Application (interlocutory) for Leave to Amend / Interlocutory Judgment Prior to Trial

Legal Issues

  1. 1 Whether to grant leave to applicants to amend originating application and statement of claim in a representative proceeding
  2. 2 Whether proposed pleadings meet requirements of specificity, particularly in fraud and fiduciary duty allegations
  3. 3 Whether group members' claims are sufficiently pleaded and identified

Ratio Decidendi

Leave to amend the Second Amended Originating Application and Second Amended Statement of Claim was refused because proposed pleadings regarding contractual engagements, fiduciary duties, and fraud were inadequately particularised, embarrassing or likely to cause prejudice, and/or failed to fulfil the necessary requirements under the Court's rules and Part IVA regime. Applicants were granted liberty to amend in a different form, but not in the terms proposed.

Court Disposition

Leave to amend refused in proposed form; liberty to propose further amendments in different form; joinder and disjoinder of parties ordered.

Orders

  • Applicants have leave to join Antonietta Perazzoli, Susan Ferluga and Renato Ferluga as Fourth, Fifth and Sixth Applicants respectively.
  • William Johnson is disjoined as Third Applicant.