Milfull v Terranora Lakes Country Club Limited [2002] FCA 178
Leave to file the proposed further amended statement of claim was refused because the proceeding was not properly constituted as a Part IVA representative proceeding, the applicant did not have claims against all respondents, and joinder under O 6 r 2 was not an appropriate means to cure that defect. The proposed pleading also failed to disclose arguable claims against Coopers for breach of duty and against the receivers for breach of good faith. Although the pleaded loss of the amount invested in shares was merely reflective of Management's loss, the loss of timeshare rights was arguable as a separate loss capable of being pursued.
- Jurisdiction
- Australia
- Judgment Date
- 01 March 2002
- Procedural Posture
- Application for Leave to Further Amend Statement of Claim in Proceedings Commenced as Representative Proceedings / Leave to Amend
- Outcome
- Application refused
- Legal Topics
- ['application to Further Amend Statement of Claim' 'part IVA Representative Proceeding Requirements' 'joinder of Additional Applicants' 'deficiency in Pleading Causation' 'derivative Actions and Proper Plaintiff Rule' "shareholders' Loss Distinct From Company Loss" 'redeemable Preference Shares and Timeshare Rights' 'duty of Care for Pure Economic Loss' "receivers' Duty of Good Faith"]
Case Brief
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Procedural Posture
Application for Leave to Further Amend Statement of Claim in Proceedings Commenced as Representative Proceedings / Leave to Amend
Legal Issues
- 1 ['Whether the proceedings satisfied s 33C(1)(a) of the Federal Court of Australia Act 1976 (Cth) as representative proceedings where the applicant did not have claims against all respondents.' 'Whether additional applicants could be joined to represent sub-groups of group members.' 'Whether the proposed pleading sufficiently alleged a causative link between the alleged misleading or deceptive conduct or non-disclosures and the loss claimed.' 'Whether the loss claimed by RPS holders was merely reflective of loss suffered by Management and therefore recoverable only by the company or its liquidator.' 'Whether the loss of timeshare rights was capable of being valued separately from the loss in value of shares or company assets.' 'Whether the proposed pleading disclosed an arguable duty of care owed by Coopers to the RPS holders.' 'Whether the proposed pleading disclosed a duty of good faith owed by the receivers to the RPS holders.']
Ratio Decidendi
Leave to file the proposed further amended statement of claim was refused because the proceeding was not properly constituted as a Part IVA representative proceeding, the applicant did not have claims against all respondents, and joinder under O 6 r 2 was not an appropriate means to cure that defect. The proposed pleading also failed to disclose arguable claims against Coopers for breach of duty and against the receivers for breach of good faith. Although the pleaded loss of the amount invested in shares was merely reflective of Management's loss, the loss of timeshare rights was arguable as a separate loss capable of being pursued.
Court Disposition
Application refused
Orders
- ['Leave to further amend the statement of claim in terms of Exhibit PGB1 filed 20 November 2001 be refused.']
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