McCarthy v McIntyre [1999] FCA 805

McCarthy v McIntyre [1999] FCA 805

The Court refused to permit a late amendment to pleadings as the misleading and deceptive conduct claim by Edlan was never properly pleaded or particularised. The question of whether Nevitoro and Auro were knowingly concerned or otherwise liable for misleading or deceptive conduct is to be remitted to the primary judge. The appeals and cross-appeals are disposed of according to parties' respective successes, with costs apportioned accordingly.

Parties
First Appellant: Ronald Ian McCarthy; Second Appellant: Maxwell McCarthy; Third Appellant/cross Respondent: Edlan No. 54 Pty Limited; First Respondent: Neville McIntyre; Second Respondent/cross Appellant: Auro Romano McIntyre; Third Respondent: Nevitoro Investments Pty Limited
Jurisdiction
Australia
Judgment Date
16 June 1999
Procedural Posture
Appeal and Cross Appeal / Judgment Following Appeal and Cross Appeal After Remitter for Further Determination
Outcome
Appeal and cross-appeal allowed in part, dismissed in part; various orders set aside or remitted.
Legal Topics
Unpaid Vendor's Lien, Misleading or Deceptive Conduct, Third Party Reliance Claim, Interest on Judgment Debt, Costs on Appeal
Commercial Law Equity Trade Practices Unpaid Vendor's Lien Misleading or Deceptive Conduct Third Party Reliance Claim Interest on Judgment Debt Costs on Appeal

Case Brief

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Parties

Ronald Ian McCarthy

First Appellant

Maxwell McCarthy

Second Appellant

Edlan No. 54 Pty Limited

Third Appellant/cross Respondent

Neville McIntyre

First Respondent

Auro Romano McIntyre

Second Respondent/cross Appellant

Nevitoro Investments Pty Limited

Third Respondent

Procedural Posture

Appeal and Cross Appeal / Judgment Following Appeal and Cross Appeal After Remitter for Further Determination

Legal Issues

  1. 1 Whether the omission of Edlan in pleadings warranted amendment after judgment
  2. 2 Whether Nevitoro Investments Pty Limited is deemed to have engaged in misleading or deceptive conduct under s 84(2) Trade Practices Act 1974 (Cth)
  3. 3 Whether Auro and Nevitoro were 'knowingly concerned' in Neville's conduct under Trade Practices Act 1974 (Cth)

Ratio Decidendi

The Court refused to permit a late amendment to pleadings as the misleading and deceptive conduct claim by Edlan was never properly pleaded or particularised. The question of whether Nevitoro and Auro were knowingly concerned or otherwise liable for misleading or deceptive conduct is to be remitted to the primary judge. The appeals and cross-appeals are disposed of according to parties' respective successes, with costs apportioned accordingly.

Court Disposition

Appeal and cross-appeal allowed in part, dismissed in part; various orders set aside or remitted.

Orders

  • First and third appellants' appeal dismissed as to specified orders.
  • Application by first and third applicants in NG 672 of 1996 dismissed.