Karl Suleman Enterprizes Pty Ltd (in liquidation) v Philip Viet Dzung Pham [2012] NSWSC 645

Karl Suleman Enterprizes Pty Ltd (in liquidation) v Philip Viet Dzung Pham [2012] NSWSC 645

The appeal was allowed and amendments to the pleadings were disallowed because the pleading failed to allege any contravention by a relevant 'other person' (such as Karl Suleman) as required by s 1325(2) of the Corporations Act, and thus did not engage the statutory provision. It was insufficient to merely reference contraventions by the applicant company itself (KSE). The deficiencies in the proposed amendments could not be cured without a wholesale revision of the pleadings and proper allegations supported by material facts.

Jurisdiction
Australia
Judgment Date
22 June 2012
Procedural Posture
Interlocutory Application / Appeal From Decision of Associate Justice Regarding Leave to Amend Pleading
Outcome
Appeal allowed; amendments disallowed for First, Fourth and Fifth Defendants
Legal Topics
['amendment of Pleadings' 'limitation Periods' 'federal Jurisdiction' 'managed Investment Schemes' 'case Management']
['corporations Law' 'civil Procedure'] ['amendment of Pleadings' 'limitation Periods' 'federal Jurisdiction' 'managed Investment Schemes' 'case Management']

Case Brief

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Procedural Posture

Interlocutory Application / Appeal From Decision of Associate Justice Regarding Leave to Amend Pleading

Legal Issues

  1. 1 ['Whether amendments to pleadings to add a claim under s 1325(2) of the Corporations Act should be allowed' "Whether the amended pleading properly alleges contraventions by 'another person' as required by s 1325(2)" 'Whether the amendment is barred by limitation under s 1325(4)' 'Whether delay and prejudice justify refusing amendment']

Ratio Decidendi

The appeal was allowed and amendments to the pleadings were disallowed because the pleading failed to allege any contravention by a relevant 'other person' (such as Karl Suleman) as required by s 1325(2) of the Corporations Act, and thus did not engage the statutory provision. It was insufficient to merely reference contraventions by the applicant company itself (KSE). The deficiencies in the proposed amendments could not be cured without a wholesale revision of the pleadings and proper allegations supported by material facts.

Court Disposition

Appeal allowed; amendments disallowed for First, Fourth and Fifth Defendants

Orders

  • ['The appeal by the First, Fourth and Fifth Defendants from so much of the decision of Associate Justice Harrison as concerns them be allowed.' 'Orders made by Associate Justice Harrison on 23 November 2012 concerning the First, Fourth and Fifth Defendants set aside.' "Plaintiff's notice of motion filed 31 May 2011...