Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 10) and 15 related matters [2012] NSWSC 1181

Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 10) and 15 related matters [2012] NSWSC 1181

The OMB Parties are entitled to lead evidence relevant to the issue of whether BOQ had reasonable grounds for making relevant representations. The surprise rule does not require further pleading where the evidence has already been served. Therefore, the marketing documents and expert reports are admissible, subject to later rulings on particular objections to expert evidence.

Parties
First Plaintiff in 06/258216 and First Defendant in 06/258225: Traderight (NSW) Pty Ltd (ACN 108 880 968); Second Plaintiff in 06/258216 and Second Defendant in 08/258225: Bronwyn Smith; Third Plaintiff in 06/258216 and Third Defendant in 08/258225: Geoffrey Versace; Fourth Plaintiff in 06/258216: Smith Partners Development Pty Ltd; Fifth Plaintiff in 06/258216: Verich Holdings Pty Ltd; Defendant in 06/258216; Plaintiff in 08/258225; Plaintiff in 08/279848; Defendant in 08/281332; First Defendant in 08/282126; First Defendant in 08/282304; First Plaintiff in 09/287360; Defendant in 09/287814; First Defendant in 07/256081; Fourth Defendant in 09/287816; First Defendant in 09/287824; Defendant in 10/304306; Defendant in 10/305568; Defendant in 10/306022; Defendant in 10/367086; Defendant in 10/367117: Bank of Queensland Limited (ACN 009 656 740); First Defendant in 08/279848; Tenth Defendant in 09/287360; First Plaintiff in 09/287814; Sixth Plaintiff in 07/256081: SME Business Assist Pty Limited (ACN 108 524 232); Second Defendant in 08/279848; Eleventh Defendant in 09/287360; Second Plaintiff in 09/287814; Seventh Plaintiff in 07/256081: Scott Rolfe McCoy; First Plaintiff in 08/281332: Geraghty & Palmer (NSW) Pty Ltd; Second Plaintiff in 08/281332: Shauna Margaret Geraghty; Third Plaintiff in 08/281332: Barry Palmer; First Plaintiff in 08/282126; Second Defendant in 09/287360; First Plaintiff in 07/256081; First Plaintiff in 09/287816: Rossmick No 1 Pty Limited; Second Plaintiff in 08/282126; Third Defendant in 09/287360; Second Plaintiff in 07/256081; Second Plaintiff in 09/287816: Rossmick No 2 Pty Limited; Third Plaintiff in 08/282126; Fourth Defendant in 09/287360; Third Plaintiff in 07/256081; Third Plaintiff in 09/287816: Michael Bradley; Fourth Plaintiff in 08/282126; Fifth Defendant in 09/287360; Fourth Plaintiff in 07/256081; Fourth Plaintiff in 09/287816: Ross Chapman; Fifth Plaintiff in 08/282126; Sixth Defendant in 09/287360; Fifth Plaintiff in 07/256081; Fifth Plaintiff in 09/287816: Luke Nolan; Second Defendant in 08/282126; Second Plaintiff in 09/287360; Second Defendant in 07/256081; First Defendant in 09/287816; Second Defendant in 09/287824: David Liddy; First Plaintiff in 08/282304; Seventh Defendant in 09/287360; Eighth Plaintiff in 07/256081; First Plaintiff in 09/287824: Jude Financial Services Pty Ltd (ACN 115 763 481); Second Plaintiff in 08/282304; Eighth Defendant in 09/287360; Ninth Plaintiff in 07/256081; Second Plaintiff in 09/287824: Russell Jude Edward Gardner; Third Plaintiff in 08/282304; Ninth Defendant in 09/287360; Tenth Plaintiff in 07/256081; Third Plaintiff in 09/287824: Penelope Ann Gardner; First Defendant in 09/287360: Industrial Court of New South Wales; Third Plaintiff in 09/287360; Third Defendant in 07/256081; Second Defendant in 09/287816; Fourth Defendant in 09/287824: Donna Quinn; Fourth Plaintiff in 09/287360; Fourth Defendant in 07/256081; Third Defendant in 09/287816; Third Defendant in 09/287824: Gary Allsop; First Plaintiff in 10/304306: Southpole Financial Services Pty Ltd; Second Plaintiff in 10/304306: Harunur Rashid Chowdhury; Third Plaintiff in 10/304306: Iftekhar Tarek Hassan; Fourth Plaintiff in 10/304306: Ikthedar Hassan Murad; First Plaintiff in 10/305568: Best Deal Pty Limited (ACN 119 366 433); Second Plaintiff in 10/305568: Jeffrey Bruce Jones; First Plaintiff in 10/306022: LJH Group Pty Limited (ACN 123 507 497); Second Plaintiff in 10/306022: Leslie Xu; Third Plaintiff in 10/306022: Jin Yu Yang; First Plaintiff in 10/367086: Leokate Pty Ltd (ACN 111 162 068); Second Plaintiff in 10/367086: Stephen Sargent; Third Plaintiff in 10/367086: Lauren Sargent; First Plaintiff in 10/367117: Shamarbre Pty Ltd; Second Plaintiff in 10/367117: Ronald George Johnson
Jurisdiction
Australia
Judgment Date
04 October 2012
Procedural Posture
Interlocutory Applications / Ruling on Admissibility of Evidence
Outcome
Relevant documents and expert reports admitted into evidence (pending specific objections to expert evidence).
Legal Topics
Admissibility of Evidence, Misleading and Deceptive Conduct, Reasonable Grounds for Representations, Pleadings, Surprise Rule, Expert Reports
Evidence Practice and Procedure Trade Practices Franchising Admissibility of Evidence Misleading and Deceptive Conduct Reasonable Grounds for Representations Pleadings +2 more

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Parties

Traderight (NSW) Pty Ltd (ACN 108 880 968)

First Plaintiff in 06/258216 and First Defendant in 06/258225

Bronwyn Smith

Second Plaintiff in 06/258216 and Second Defendant in 08/258225

Geoffrey Versace

Third Plaintiff in 06/258216 and Third Defendant in 08/258225

Smith Partners Development Pty Ltd

Fourth Plaintiff in 06/258216

Verich Holdings Pty Ltd

Fifth Plaintiff in 06/258216

Bank of Queensland Limited (ACN 009 656 740)

Defendant in 06/258216; Plaintiff in 08/258225; Plaintiff in 08/279848; Defendant in 08/281332; First Defendant in 08/282126; First Defendant in 08/282304; First Plaintiff in 09/287360; Defendant in 09/287814; First Defendant in 07/256081; Fourth Defendant in 09/287816; First Defendant in 09/287824; Defendant in 10/304306; Defendant in 10/305568; Defendant in 10/306022; Defendant in 10/367086; Defendant in 10/367117

SME Business Assist Pty Limited (ACN 108 524 232)

First Defendant in 08/279848; Tenth Defendant in 09/287360; First Plaintiff in 09/287814; Sixth Plaintiff in 07/256081

Scott Rolfe McCoy

Second Defendant in 08/279848; Eleventh Defendant in 09/287360; Second Plaintiff in 09/287814; Seventh Plaintiff in 07/256081

Geraghty & Palmer (NSW) Pty Ltd

First Plaintiff in 08/281332

Shauna Margaret Geraghty

Second Plaintiff in 08/281332

Barry Palmer

Third Plaintiff in 08/281332

Rossmick No 1 Pty Limited

First Plaintiff in 08/282126; Second Defendant in 09/287360; First Plaintiff in 07/256081; First Plaintiff in 09/287816

Rossmick No 2 Pty Limited

Second Plaintiff in 08/282126; Third Defendant in 09/287360; Second Plaintiff in 07/256081; Second Plaintiff in 09/287816

Michael Bradley

Third Plaintiff in 08/282126; Fourth Defendant in 09/287360; Third Plaintiff in 07/256081; Third Plaintiff in 09/287816

Ross Chapman

Fourth Plaintiff in 08/282126; Fifth Defendant in 09/287360; Fourth Plaintiff in 07/256081; Fourth Plaintiff in 09/287816

Luke Nolan

Fifth Plaintiff in 08/282126; Sixth Defendant in 09/287360; Fifth Plaintiff in 07/256081; Fifth Plaintiff in 09/287816

David Liddy

Second Defendant in 08/282126; Second Plaintiff in 09/287360; Second Defendant in 07/256081; First Defendant in 09/287816; Second Defendant in 09/287824

Jude Financial Services Pty Ltd (ACN 115 763 481)

First Plaintiff in 08/282304; Seventh Defendant in 09/287360; Eighth Plaintiff in 07/256081; First Plaintiff in 09/287824

Russell Jude Edward Gardner

Second Plaintiff in 08/282304; Eighth Defendant in 09/287360; Ninth Plaintiff in 07/256081; Second Plaintiff in 09/287824

Penelope Ann Gardner

Third Plaintiff in 08/282304; Ninth Defendant in 09/287360; Tenth Plaintiff in 07/256081; Third Plaintiff in 09/287824

Industrial Court of New South Wales

First Defendant in 09/287360

Donna Quinn

Third Plaintiff in 09/287360; Third Defendant in 07/256081; Second Defendant in 09/287816; Fourth Defendant in 09/287824

Gary Allsop

Fourth Plaintiff in 09/287360; Fourth Defendant in 07/256081; Third Defendant in 09/287816; Third Defendant in 09/287824

Southpole Financial Services Pty Ltd

First Plaintiff in 10/304306

Harunur Rashid Chowdhury

Second Plaintiff in 10/304306

Iftekhar Tarek Hassan

Third Plaintiff in 10/304306

Ikthedar Hassan Murad

Fourth Plaintiff in 10/304306

Best Deal Pty Limited (ACN 119 366 433)

First Plaintiff in 10/305568

Jeffrey Bruce Jones

Second Plaintiff in 10/305568

LJH Group Pty Limited (ACN 123 507 497)

First Plaintiff in 10/306022

Leslie Xu

Second Plaintiff in 10/306022

Jin Yu Yang

Third Plaintiff in 10/306022

Leokate Pty Ltd (ACN 111 162 068)

First Plaintiff in 10/367086

Stephen Sargent

Second Plaintiff in 10/367086

Lauren Sargent

Third Plaintiff in 10/367086

Shamarbre Pty Ltd

First Plaintiff in 10/367117

Ronald George Johnson

Second Plaintiff in 10/367117

Procedural Posture

Interlocutory Applications / Ruling on Admissibility of Evidence

Legal Issues

  1. 1 Is certain evidence, including expert reports and marketing documents, admissible to prove the existence or absence of reasonable grounds for representations as to future matters under Trade Practices Act 1974 and Fair Trading Act 1987?
  2. 2 Does the surprise rule in UCPR r 14.14 require pleading specific matters if evidence has been served?
  3. 3 Are expert opinions relevant to the question of 'reasonable grounds'?

Ratio Decidendi

The OMB Parties are entitled to lead evidence relevant to the issue of whether BOQ had reasonable grounds for making relevant representations. The surprise rule does not require further pleading where the evidence has already been served. Therefore, the marketing documents and expert reports are admissible, subject to later rulings on particular objections to expert evidence.

Court Disposition

Relevant documents and expert reports admitted into evidence (pending specific objections to expert evidence).

Orders

  • BoQ NSW & Vic Market Entry: Marketing Workplan, 22 May 2003 admitted to evidence.
  • Owner Managed Branches, Board Presentation, June 2003 admitted to evidence.