Emirates Park Pty Ltd v Magic Millions Sales Pty Ltd [2002] FCA 994

Emirates Park Pty Ltd v Magic Millions Sales Pty Ltd [2002] FCA 994

Leave to amend was granted because, although the proposed pleading required further particulars and recasting in several respects, the claims were not shown to be futile. The interstate trade or commerce allegation was inadequately particularised but could potentially be supported by the interstate transport of the horse for sale and the characteristics of the auction. The accessorial liability plea had to identify facts supporting actual knowledge or wilful blindness, and the contractual pleading had to be recast to reflect implied rather than express terms where appropriate.

Jurisdiction
Australia
Judgment Date
09 August 2002
Procedural Posture
Application to File Amended Statement of Claim / Leave to Amend Application
Outcome
Leave to amend granted, subject to the reasons for judgment.
Legal Topics
['leave to Amend Pleadings' 'misleading or Deceptive Conduct' 'false Representations' 'interstate Trade or Commerce' 'accessorial Liability' 'actual Knowledge and Wilful Blindness' 'implied Terms in Sale of Goods' 'exclusion Clauses']
['procedure' 'trade Practices' 'contract' 'sale of Goods'] ['leave to Amend Pleadings' 'misleading or Deceptive Conduct' 'false Representations' 'interstate Trade or Commerce' 'accessorial Liability' 'actual Knowledge and Wilful Blindness' 'implied Terms in Sale of Goods' 'exclusion Clauses']

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Procedural Posture

Application to File Amended Statement of Claim / Leave to Amend Application

Legal Issues

  1. 1 ['Whether leave should be granted to amend the application and statement of claim.' 'Whether the proposed Trade Practices Act 1974 (Cth) claim against the second respondent sufficiently pleaded conduct in trade or commerce among the States.' 'Whether interstate transportation of the colt for sale could form part of interstate trade or commerce.' 'Whether accessorial liability under s 75B of the Trade Practices Act 1974 (Cth) required actual knowledge of the essential matters alleged against the principal contravener.' "Whether an allegation that the second respondent should have been aware of the horse's condition should be pleaded as wilful blindness with supporting facts." 'Whether the pleaded contractual term that the horse be sound and suitable for racing should be recast as an implied term rather than an express term.' "Whether the applicant should plead in anticipation its answer to the second respondent's reliance on clause 15.1 as excluding implied terms under the Sale of Goods Act 1896 (Qld)."]

Ratio Decidendi

Leave to amend was granted because, although the proposed pleading required further particulars and recasting in several respects, the claims were not shown to be futile. The interstate trade or commerce allegation was inadequately particularised but could potentially be supported by the interstate transport of the horse for sale and the characteristics of the auction. The accessorial liability plea had to identify facts supporting actual knowledge or wilful blindness, and the contractual pleading had to be recast to reflect implied rather than express terms where appropriate.

Court Disposition

Leave to amend granted, subject to the reasons for judgment.

Orders

  • ['The applicant have leave to amend its application and the statement of claim within seven days from the date hereof in the form of annexure "B" to the affidavit of D.F. Jardine filed by leave on 2 August 2002, but taking these reasons into account.']