Underwood v Commonwealth Bank of Australia (ACN 123 123 124) [1995] FCA 112

Underwood v Commonwealth Bank of Australia (ACN 123 123 124) [1995] FCA 112

Leave to amend the statement of claim was refused because of applicants' inability to provide security for costs thrown away and significant prejudice to respondents in preparing for a fundamentally new case at the last moment; since Shelagan then conceded it could not succeed on the existing pleading, the claim was dismissed. On the cross-claim, judgment was entered for Dalgetys against Shelagan based on undisputed debt, with orders for costs reflecting parties' roles and involvement.

Parties
First Applicant: Frank Underwood; Second Applicant: Shirley Elizabeth Underwood; Third Applicant: Harry Noel Carrol; Fourth Applicant: Ethel Olive Carrol; Fifth Applicant: Shelagan Pty Limited (ACN 006 068 024); Sixth Applicant: Roto Pastoral Company Pty Limited (ACN 000 018 244); First Respondent: Commonwealth Bank of Australia (ACN 123 123 124); Second Respondent: Dalgety Rural Finance Limited (ACN 000 034 917); Third Respondent: Dalgety Farmers Limited (ACN 004 302 390)
Jurisdiction
Australia
Judgment Date
07 March 1995
Procedural Posture
Civil / Judgment After Application to Amend and Cross Claim Determination
Outcome
Application dismissed; judgment for cross-claimant on cross-claim.
Legal Topics
Negligent Misrepresentation, Misleading or Deceptive Conduct, Breach of Implied Term, Good Faith, Cross Claim, Amendment of Pleadings, Costs
Contract Equity Trade Practices Negligent Misrepresentation Misleading or Deceptive Conduct Breach of Implied Term Good Faith Cross Claim +2 more

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Parties

Frank Underwood

First Applicant

Shirley Elizabeth Underwood

Second Applicant

Harry Noel Carrol

Third Applicant

Ethel Olive Carrol

Fourth Applicant

Shelagan Pty Limited (ACN 006 068 024)

Fifth Applicant

Roto Pastoral Company Pty Limited (ACN 000 018 244)

Sixth Applicant

Commonwealth Bank of Australia (ACN 123 123 124)

First Respondent

Dalgety Rural Finance Limited (ACN 000 034 917)

Second Respondent

Dalgety Farmers Limited (ACN 004 302 390)

Third Respondent

Procedural Posture

Civil / Judgment After Application to Amend and Cross Claim Determination

Legal Issues

  1. 1 Whether leave should be granted to amend the statement of claim to allege a new cause of action.
  2. 2 Whether Dalgetys are entitled to judgment on the cross-claim against Shelagan.
  3. 3 Appropriate costs orders in light of the application and cross-claim.

Ratio Decidendi

Leave to amend the statement of claim was refused because of applicants' inability to provide security for costs thrown away and significant prejudice to respondents in preparing for a fundamentally new case at the last moment; since Shelagan then conceded it could not succeed on the existing pleading, the claim was dismissed. On the cross-claim, judgment was entered for Dalgetys against Shelagan based on undisputed debt, with orders for costs reflecting parties' roles and involvement.

Court Disposition

Application dismissed; judgment for cross-claimant on cross-claim.

Orders

  • The application be dismissed.
  • The fifth applicant (Shelagan Pty Limited) pay the second and third respondents' costs on the application.