Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537

Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537

Leave to amend should be granted except in respect of causes of action and parts of the PFASC (proposed further amended statement of claim) that are fundamentally untenable in law, particularly: conspiracy claims not identifying a sufficiently specific intended victim, reliance on breach of s 87B undertakings as 'unlawful means', or conduct not actionable in tort or statute. The applicant is permitted one last opportunity to properly plead its case, but must amend defective allegations, especially those regarding 'false suggestions', and costs may be ordered against it for additional effort caused.

Jurisdiction
Australia
Judgment Date
19 December 2003
Procedural Posture
Application for Leave to Amend Pleading / Interlocutory Application – Reasons for Judgment on Amendment
Outcome
Leave to amend granted in part (subject to amendments); further orders to be brought in by parties; question of costs and final orders adjourned.
Legal Topics
['leave to Amend Pleadings' 'tort of Conspiracy' 'misleading or Deceptive Conduct' 'breach of Contract' 'pleadings – Material Facts' 'unlawful Means Conspiracy' 'section 52 Trade Practices Act' 'section 87 B Undertakings' 'causation and Loss' 'procedural Discretion']
['practice and Procedure' 'tort' 'contract' 'statutory Law'] ['leave to Amend Pleadings' 'tort of Conspiracy' 'misleading or Deceptive Conduct' 'breach of Contract' 'pleadings – Material Facts' 'unlawful Means Conspiracy' 'section 52 Trade Practices Act' 'section 87 B Undertakings' 'causation and Loss' 'procedural Discretion']

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Procedural Posture

Application for Leave to Amend Pleading / Interlocutory Application – Reasons for Judgment on Amendment

Legal Issues

  1. 1 ['Whether leave should be granted to amend the statement of claim' 'Whether proposed further amended statement of claim discloses a reasonable cause of action' 'Whether conspiracy by unlawful means is properly pleaded' "Whether breaches of contract, s 52 TPA, 'false suggestions', or breach of s 87B undertakings constitute 'unlawful means' for tort of conspiracy" 'Whether the amended claim is embarrassing or an abuse of process' 'Whether leave should be refused on discretionary/procedural grounds']

Ratio Decidendi

Leave to amend should be granted except in respect of causes of action and parts of the PFASC (proposed further amended statement of claim) that are fundamentally untenable in law, particularly: conspiracy claims not identifying a sufficiently specific intended victim, reliance on breach of s 87B undertakings as 'unlawful means', or conduct not actionable in tort or statute. The applicant is permitted one last opportunity to properly plead its case, but must amend defective allegations, especially those regarding 'false suggestions', and costs may be ordered against it for additional effort caused.

Court Disposition

Leave to amend granted in part (subject to amendments); further orders to be brought in by parties; question of costs and final orders adjourned.

Orders

  • ['Parties to bring in minutes of orders to give effect to reasons for judgment by 13 February 2004.' 'All questions relating to final orders and costs of the application for leave to amend adjourned to directions hearing on 16 February 2004 at 9.30am.']