Banks v Alphatise Pty Limited [2014] NSWSC 1437

Banks v Alphatise Pty Limited [2014] NSWSC 1437

The proposed amended statement of claim sufficiently pleaded a cause of action against Mr Pearson because the material fact requiring pleading was his actual knowledge that Alphatise lacked reasonable grounds for the representation; facts from which that actual knowledge may be inferred are evidence, not material facts required for a valid pleading. Although particulars of knowledge might later be ordered under UCPR r 15.15, that did not justify dismissal or strike out before a defence had been filed.

Jurisdiction
Australia
Judgment Date
17 October 2014
Procedural Posture
Interlocutory Application in Equity Division Proceedings / Second Defendant's Notice of Motion Seeking Dismissal or Strike Out; Plaintiff Sought Leave to Amend Statement of Claim
Outcome
Leave to amend statement of claim granted. Application to strike out refused. No order as to costs.
Legal Topics
['pleading Actual Knowledge' 'particulars of Knowledge' 'accessorial Liability' 'misrepresentations as to Future Matters' 'strike Out Application' 'leave to Amend Statement of Claim']
['civil Procedure' 'corporations Law' 'misleading or Deceptive Conduct'] ['pleading Actual Knowledge' 'particulars of Knowledge' 'accessorial Liability' 'misrepresentations as to Future Matters' 'strike Out Application' 'leave to Amend Statement of Claim']

Case Brief

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Procedural Posture

Interlocutory Application in Equity Division Proceedings / Second Defendant's Notice of Motion Seeking Dismissal or Strike Out; Plaintiff Sought Leave to Amend Statement of Claim

Legal Issues

  1. 1 ['Whether the original statement of claim disclosed a complete cause of action against the second defendant for being knowingly concerned in the alleged misrepresentation.' 'Whether the proposed amendment alleging that Mr Pearson knew Alphatise did not have reasonable grounds for making the representation was sufficient as a matter of pleading.' 'Whether facts from which actual knowledge is to be inferred are material facts that must be pleaded, or merely evidence or particulars.' 'Whether the claims against the second defendant should be dismissed or struck out under UCPR r 13.4 or r 14.28.']

Ratio Decidendi

The proposed amended statement of claim sufficiently pleaded a cause of action against Mr Pearson because the material fact requiring pleading was his actual knowledge that Alphatise lacked reasonable grounds for the representation; facts from which that actual knowledge may be inferred are evidence, not material facts required for a valid pleading. Although particulars of knowledge might later be ordered under UCPR r 15.15, that did not justify dismissal or strike out before a defence had been filed.

Court Disposition

Leave to amend statement of claim granted. Application to strike out refused. No order as to costs.

Orders

  • ['The plaintiff have leave to amend the statement of claim by filing an amended statement of claim in the form of annexure A to the affidavit of Ashley Miller sworn 16 October 2014 herein, subject to verification.' 'There be no order as to costs, to the intent that each party bear its own costs of the motion.' 'The...