Williams & Kersten Pty Ltd v National Australia Bank Limited [2022] FCA 1254

Williams & Kersten Pty Ltd v National Australia Bank Limited [2022] FCA 1254

Leave to include the insolvent trading claim was refused because the proposed pleading brought the claim in a representative rather than individual capacity, when group members had not commenced such a proceeding and were not parties to the class action; the extraordinary and largely unexplained delay also justified refusal. Leave to amend the group member definition was granted because the objection that the definition might include persons who had not suffered loss was not a valid objection to how the group was defined, and the Court was told that no potentially excluded viable group member claims existed.

Jurisdiction
Australia
Judgment Date
07 October 2022
Procedural Posture
Class Action / Application for Leave to Amend Statement of Claim and Case Management Hearing
Outcome
Leave to amend the group member definition granted; application to include an insolvent trading claim refused; leave granted to discontinue against the fourth respondent; procedural orders made for amended pleadings, discovery and case management.
Legal Topics
['leave to Amend Statement of Claim' 'insolvent Trading Claim Under S 588 M(3) of the Corporations Act 2001 (cth)' 'group Member Definition' 'standard Discovery' 'discontinuance Against Respondent']
['practice and Procedure' 'corporations' 'class Actions'] ['leave to Amend Statement of Claim' 'insolvent Trading Claim Under S 588 M(3) of the Corporations Act 2001 (cth)' 'group Member Definition' 'standard Discovery' 'discontinuance Against Respondent']

Case Brief

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Procedural Posture

Class Action / Application for Leave to Amend Statement of Claim and Case Management Hearing

Legal Issues

  1. 1 ['Whether leave should be granted to amend the statement of claim to include a claim under s 588M(3) of the Corporations Act 2001 (Cth) against NAB for liability as a shadow director of the Walton companies for trading while insolvent.' 'Whether leave should be granted to amend the group member definition.' 'Whether the pleading and future case management should proceed consistently with the overarching purpose.']

Ratio Decidendi

Leave to include the insolvent trading claim was refused because the proposed pleading brought the claim in a representative rather than individual capacity, when group members had not commenced such a proceeding and were not parties to the class action; the extraordinary and largely unexplained delay also justified refusal. Leave to amend the group member definition was granted because the objection that the definition might include persons who had not suffered loss was not a valid objection to how the group was defined, and the Court was told that no potentially excluded viable group member claims existed.

Court Disposition

Leave to amend the group member definition granted; application to include an insolvent trading claim refused; leave granted to discontinue against the fourth respondent; procedural orders made for amended pleadings, discovery and case management.

Orders

  • ['Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the applicant be granted leave to discontinue the proceedings against the fourth respondent, Craig Hall Walton.' 'Pursuant to s 33K of the FCA Act, the applicant be granted leave to amend the group definition in this proceeding in the...