Lyons, Dennis Aloysius & Anor v Kern Konstructions (Townsville) Pty Ltd & Anor [1983] FCA 68

Lyons, Dennis Aloysius & Anor v Kern Konstructions (Townsville) Pty Ltd & Anor [1983] FCA 68

Leave to amend was not granted immediately because the proposed pleading still required reformulation, particulars and damage particulars. The applicants could be permitted to advance the pleaded case about the 'only two shops left' statement and, with particulars, the walkway and traffic-flow allegations, and could argue that failure to correct a known inaccurate prediction was misleading or deceptive conduct. They could not plead unsupported allegations that predictions themselves were made without warrant merely to obtain discovery. The case against the second respondent could not proceed unless particulars of Goodfellow's alleged agency were provided and verified.

Jurisdiction
Australia
Judgment Date
19 April 1983
Procedural Posture
Interlocutory Application for Leave to Plead in Terms of a Proposed Amended Statement of Claim Alleging Contraventions of Part V of the Trade Practices Act / After the Applicants' Statement of Claim Had Been Struck Out and Leave to Deliver an Earlier Proposed Amended Statement of Claim Refused; Application for Leave to Amend Was Opposed and Adjourned for Reformulation
Outcome
Application adjourned; no order granting leave to amend was made at this time, and the applicants were ordered to pay the respondents' costs of the application.
Legal Topics
['leave to Amend Pleading' 'misleading or Deceptive Conduct' 'trade Practices Act S.52' 'promissory Representations' 'failure to Correct Prediction' 'agency Particulars' 'particulars of Damage' 'discovery and Fishing Expedition']
['practice and Procedure' 'trade Practices' 'consumer Protection' 'pleadings'] ['leave to Amend Pleading' 'misleading or Deceptive Conduct' 'trade Practices Act S.52' 'promissory Representations' 'failure to Correct Prediction' 'agency Particulars' 'particulars of Damage' 'discovery and Fishing Expedition']

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Procedural Posture

Interlocutory Application for Leave to Plead in Terms of a Proposed Amended Statement of Claim Alleging Contraventions of Part V of the Trade Practices Act / After the Applicants' Statement of Claim Had Been Struck Out and Leave to Deliver an Earlier Proposed Amended Statement of Claim Refused; Application for Leave to Amend Was Opposed and Adjourned for Reformulation

Legal Issues

  1. 1 ['Whether the alleged statement that there were only two shops left to be let could bear the pleaded meaning and support a claim against the first respondent' 'Whether the prediction that the shopping centre would be fully tenanted at opening could itself be pleaded as misleading or deceptive without particulars of facts known to the respondents' 'Whether a failure to correct a prediction known to be inaccurate could constitute misleading or deceptive conduct under s.52' 'Whether the alleged statement that a walkway would be constructed within twelve months could found a s.52 claim notwithstanding an argument that it was promissory' 'Whether the applicants could plead allegations about a feasibility study or projected traffic flow without properly limiting the case to the evidence available' "Whether the applicants could proceed against the second respondent without particulars and verification of Goodfellow's alleged agency" 'Whether particulars of damage were required before leave to amend should be granted']

Ratio Decidendi

Leave to amend was not granted immediately because the proposed pleading still required reformulation, particulars and damage particulars. The applicants could be permitted to advance the pleaded case about the 'only two shops left' statement and, with particulars, the walkway and traffic-flow allegations, and could argue that failure to correct a known inaccurate prediction was misleading or deceptive conduct. They could not plead unsupported allegations that predictions themselves were made without warrant merely to obtain discovery. The case against the second respondent could not proceed unless particulars of Goodfellow's alleged agency were provided and verified.

Court Disposition

Application adjourned; no order granting leave to amend was made at this time, and the applicants were ordered to pay the respondents' costs of the application.

Orders

  • ['The application is adjourned to 9.30 a.m. on Tuesday, 16 May 1983, to permit the applicants to reformulate the proposed amended Statement of Claim.' 'The applicants pay to the respondents the taxed costs of and incidental to this application.']