Millinium Capital Managers Ltd v Soma Group Ltd [2020] NSWSC 300

Millinium Capital Managers Ltd v Soma Group Ltd [2020] NSWSC 300

Leave to file the proposed Amended Commercial List Statement was refused because the only pleaded basis for alleging the director defendants' actual knowledge of falsity was their directorship, which was insufficient to support the grave allegation of intentional participation in a contravention of s 18 of the Australian Consumer Law. The security for costs motion was otherwise dismissed because Millinium's undertaking, supported by publicly available weekly net tangible asset value reports, was sufficient to protect the defendants' interests, and s 15 of the Trans-Tasman Proceedings Act 2010 (Cth) did not take matters further.

Jurisdiction
Australia
Judgment Date
26 March 2020
Procedural Posture
Equity Commercial List; Procedural and Other Rulings / Interlocutory Applications on the Papers for Leave to Amend Commercial List Statement, Security for Costs, and Strike Out
Outcome
Leave to the plaintiff to file the proposed Amended Commercial List Statement was refused; leave was granted to serve any further proposed Amended Commercial List Statement; the defendants' security for costs motion was otherwise dismissed upon the plaintiff's undertaking; the plaintiff's amendment motion was stood...
Legal Topics
['leave to Amend Commercial List Statement' 'misleading or Deceptive Conduct' 'knowing Involvement of Directors' 'particulars of Knowledge' 'security for Costs' 'undertaking to Pay Money Into Court']
['practice and Procedure' 'consumer Law' 'costs'] ['leave to Amend Commercial List Statement' 'misleading or Deceptive Conduct' 'knowing Involvement of Directors' 'particulars of Knowledge' 'security for Costs' 'undertaking to Pay Money Into Court']

Case Brief

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Procedural Posture

Equity Commercial List; Procedural and Other Rulings / Interlocutory Applications on the Papers for Leave to Amend Commercial List Statement, Security for Costs, and Strike Out

Legal Issues

  1. 1 ['Whether Millinium should be granted leave to file the proposed Amended Commercial List Statement alleging that the director defendants were knowingly involved in misleading or deceptive conduct.' 'Whether allegations that directors had actual knowledge because of their directorship provided a sufficient basis for alleging involvement in a breach of s 18 of the Australian Consumer Law.' "Whether the defendants should obtain security for costs in the sum sought, or whether Millinium's undertaking was sufficient to protect their interests." 'Whether s 15 of the Trans-Tasman Proceedings Act 2010 (Cth) took the security for costs application further where the Commercial List Summons was served in New Zealand.']

Ratio Decidendi

Leave to file the proposed Amended Commercial List Statement was refused because the only pleaded basis for alleging the director defendants' actual knowledge of falsity was their directorship, which was insufficient to support the grave allegation of intentional participation in a contravention of s 18 of the Australian Consumer Law. The security for costs motion was otherwise dismissed because Millinium's undertaking, supported by publicly available weekly net tangible asset value reports, was sufficient to protect the defendants' interests, and s 15 of the Trans-Tasman Proceedings Act 2010 (Cth) did not take matters further.

Court Disposition

Leave to the plaintiff to file the proposed Amended Commercial List Statement was refused; leave was granted to serve any further proposed Amended Commercial List Statement; the defendants' security for costs motion was otherwise dismissed upon the plaintiff's undertaking; the plaintiff's amendment motion was stood...

Orders

  • ['Leave granted to the plaintiff to serve any further proposed Amended Commercial List Statement, to be served on the defendants and sent by email to the Associate by 5:00pm on 17 April 2020.' "The plaintiff's Notice of Motion of 25 February 2020 stood over to the motions list on 24 April 2020." "The Court noted the...