Fewin Pty Limited v Prentice [2018] FCA 852

Fewin Pty Limited v Prentice [2018] FCA 852

Leave granted in part to amend the statement of claim to plead additional and clarified trustee duties, and factual matters arising post-commencement, as some amendments were not embarrassing or bound to fail. However, amendments that were embarrassing for lack of pleadings of causation and damage, or were inadequately particularised or legally unsupported, were refused but leave given to re-plead. The proceeding is stayed under r 26.15 of the Federal Court Rules 2011 until applicants pay the earlier costs order, as the causes of action are substantially the same as in the prior discontinued proceeding and all pre-conditions of the rule are satisfied.

Parties
Applicant: Fewin Pty Limited; Applicant: Ronald Michael Coshott; Respondent: Maxwell William Prentice
Jurisdiction
Australia
Judgment Date
08 June 2018
Procedural Posture
Interlocutory Applications in Ongoing Federal Court Litigation (application for Amendment and for a Stay) / Interlocutory (leave to Amend Pleadings and Application for Stay Pending Payment of Earlier Costs Order)
Outcome
Application for leave to amend statement of claim allowed in part; application for stay granted.
Legal Topics
Leave to Amend Statement of Claim, Stay of Proceedings Pending Payment of Costs, Duties of Bankruptcy Trustees, Pleading Requirements, Exercise of Discretion to Amend Pleadings
Practice and Procedure Bankruptcy Law Insolvency Leave to Amend Statement of Claim Stay of Proceedings Pending Payment of Costs Duties of Bankruptcy Trustees Pleading Requirements Exercise of Discretion to Amend Pleadings

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Parties

Fewin Pty Limited

Applicant

Ronald Michael Coshott

Applicant

Maxwell William Prentice

Respondent

Procedural Posture

Interlocutory Applications in Ongoing Federal Court Litigation (application for Amendment and for a Stay) / Interlocutory (leave to Amend Pleadings and Application for Stay Pending Payment of Earlier Costs Order)

Legal Issues

  1. 1 Whether applicants should be granted leave to amend the statement of claim to include matters based on a recent decision and new facts
  2. 2 Whether the proposed amended statement of claim is embarrassing or liable to be struck out
  3. 3 Whether a stay pending payment of an earlier costs order should be granted under r 26.15 of the Federal Court Rules 2011

Ratio Decidendi

Leave granted in part to amend the statement of claim to plead additional and clarified trustee duties, and factual matters arising post-commencement, as some amendments were not embarrassing or bound to fail. However, amendments that were embarrassing for lack of pleadings of causation and damage, or were inadequately particularised or legally unsupported, were refused but leave given to re-plead. The proceeding is stayed under r 26.15 of the Federal Court Rules 2011 until applicants pay the earlier costs order, as the causes of action are substantially the same as in the prior discontinued proceeding and all pre-conditions of the rule are satisfied.

Court Disposition

Application for leave to amend statement of claim allowed in part; application for stay granted.

Orders

  • Leave granted to applicants to file an amended statement of claim including specified paragraphs; certain amendments may be re-pleaded to address issues; applicants to pay respondent's costs thrown away by the amendment, and costs of the application for leave to amend; proceeding stayed under r 26.15 until payment...