Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169

Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169

By majority, leave to appeal was granted because three proposed amendments raised arguable causes of action and refusal would cause substantial injustice. The proposed conspiracy pleading aimed only at an unidentified independent operator before Dresna acquired its interest was untenable because the tort required an intention to injure the plaintiff or an ascertainable class including the plaintiff. However, it was arguable that breach of s 87B undertakings, alleged false suggestions to the ACCC, and alleged misleading or deceptive ACCC submissions in connection with the sale could constitute unlawful means or conduct in trade or commerce, so leave to add pars 77 to 81, 82, 83 and 94(c)...

Jurisdiction
Australia
Judgment Date
30 June 2004
Procedural Posture
Application for Leave to Appeal and Appeal From Interlocutory Orders Refusing Leave to Further Amend a Statement of Claim / Full Court Appeal From a Single Judge of the Federal Court of Australia
Outcome
Leave to appeal granted; appeal allowed in part.
Legal Topics
['leave to Appeal' 'amendment of Pleadings' 'conspiracy to Injure by Unlawful Means' 'unlawful Means' 'section 87 B Undertakings' 'misleading or Deceptive Conduct' 'meaning of in Trade or Commerce Under S 52 of the Trade Practices Act 1974 (cth)']
['civil Procedure' 'torts' 'trade Practices'] ['leave to Appeal' 'amendment of Pleadings' 'conspiracy to Injure by Unlawful Means' 'unlawful Means' 'section 87 B Undertakings' 'misleading or Deceptive Conduct' 'meaning of in Trade or Commerce Under S 52 of the Trade Practices Act 1974 (cth)']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From Interlocutory Orders Refusing Leave to Further Amend a Statement of Claim / Full Court Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from orders refusing proposed amendments to a statement of claim.' 'Whether a proposed pleading alleging conspiracy to injure an unidentified independent operator before Dresna entered the Mentone BSA disclosed an arguable cause of action.' 'Whether breach of undertakings given under s 87B of the Trade Practices Act 1974 (Cth) could arguably constitute unlawful means for the tort of conspiracy by unlawful means.' 'Whether alleged false suggestions or false representations to the ACCC could arguably constitute unlawful means for the tort of conspiracy by unlawful means.' 'Whether alleged misleading submissions to the ACCC seeking consent to sell the Mentone business to Coles were arguably conduct in trade or commerce for the purposes of s 52 of the Trade Practices Act 1974 (Cth).']

Ratio Decidendi

By majority, leave to appeal was granted because three proposed amendments raised arguable causes of action and refusal would cause substantial injustice. The proposed conspiracy pleading aimed only at an unidentified independent operator before Dresna acquired its interest was untenable because the tort required an intention to injure the plaintiff or an ascertainable class including the plaintiff. However, it was arguable that breach of s 87B undertakings, alleged false suggestions to the ACCC, and alleged misleading or deceptive ACCC submissions in connection with the sale could constitute unlawful means or conduct in trade or commerce, so leave to add pars 77 to 81, 82, 83 and 94(c)...

Court Disposition

Leave to appeal granted; appeal allowed in part.

Orders

  • ['The applicant has leave to appeal.' 'The appeal be allowed in part.' 'Pars 1(a), (b), (c) and (d) of the order of 18 February 2004 be set aside.' 'In lieu it is ordered that the appellant have leave to further amend its statement of claim by adding pars 77 to 81, 82 and 83 and 94(c) of the proposed pleading which...