Abacus Funds Management Ltd v Nethurst P/L - [2003] QCA 423

SUPREME COURT OF QUEENSLAND

CITATION:

Abacus Funds Management Ltd v Nethurst P/L & Ors [2003] QCA 423

PARTIES:

ABACUS FUNDS MANAGEMENT LTD ACN 007 415 590
(plaintiff/first respondent)
v
NETHURST PTY LTD ACN 069 125 275
(first defendant/first appellant)
ANTOINE GHANEM AND ADRIENNE GHANEM
(second defendants/second appellants)
PETRIE POINT PTY LTD ACN 056 548 595
(second respondent)
ANGUS WILLIAM JOHNSON
(third respondent)

FILE NOS:

Appeal No 10919 of 2002
SC No 10428 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2003

JUDGES:

McMurdo P, Muir and Holmes JJ
Separate reasons for judgment for each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – Amendment – where the appellants sought leave to amend their pleadings to include a counterclaim – where leave refused on the basis that the counterclaim has no prospects of success and because one of the claims was not made against the first respondent as required by r 178(1) Uniform Civil Procedure Rules 1999 (Qld) – whether the proposed pleading disclosed an arguable claim

TRADE AND COMMERCE – TRADE AND COMMERCE GENERALLY – MISCELLANEOUS PROVISIONS - where the appellants’ proposed counterclaim sought relief under s 80 and declarations made pursuant to s 87 of the Trade Practices Act 1974 (Cth) – whether a nexus between the conduct the subject of the injunction sought and the contravening conduct is a necessary precondition for the application of s 80

Trade Practices Act 1974 (Cth), s 80, s 87
Uniform Civil Procedure Rules 1999 (Qld), r 178(1), r 179

Australian Consumer & Competition Commission v Office Link (Aust) Pty Ltd (1997) ATPR 41-598, referred to
Australian Consumer & Competition Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79, referred to
Australian Consumer & Competition Commission v Virgin Mobile Australia (2002) SCA 1548 , referred to
Bahr v Nicolay (No 2) (1988) 164 CLR 604, referred to
General Steel Industries v Commissioner for Railways (1964) 112 CLR 125, applied
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied
South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456, applied
Truth About Motorways v Macquarie Infrastructure Investment Management [2000] HCA 11 (1999) 200 CLR 591, followed

COUNSEL:

J Bell QC, with D Kelly, for the first and second appellants
M Bland for the first respondent
B D O’Donnell QC for the second and third respondents

SOLICITORS:

Hopgood Ganim for the first and second appellants
McCullough Robertson for the first respondent
Russell & Company for the second and third respondents

McMURDO P: I have had the benefit of reading the reasons for judgment of Muir J in which the facts and issues are set out. I agree with him that the learned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] QCA 423
Decision Date: 26 September 2003

CaseChat Overview and Summary

In the case of Abacus Funds Management Ltd v Nethurst P/L, the Court of Appeal considered an application for leave to amend pleadings to include a counterclaim by the appellants. The case was initially heard in the Supreme Court of Queensland. The appellants sought to introduce a counterclaim based on sections 80 and 87 of the Trade Practices Act 1974 (Cth), which related to claims of misleading or deceptive conduct and relief under the Act. The respondents opposed the amendment, arguing that the counterclaim had no prospects of success and that one of the claims was not made against the first respondent as required by rule 178(1) of the Uniform Civil Procedure Rules 1999 (Qld).

The primary legal issues the court had to decide were whether the proposed counterclaim disclosed an arguable claim and whether there was a necessary nexus between the conduct the subject of the injunction sought and the contravening conduct for the application of section 80 of the Trade Practices Act. The court had to determine if the proposed pleadings met the threshold for leave to amend under the rules and if the counterclaim was legally viable.

The court found that the proposed pleadings did not disclose an arguable claim as they lacked sufficient detail to establish the necessary elements of the counterclaim. Additionally, the court held that the proposed pleadings did not demonstrate a nexus between the conduct in question and the contravening conduct, which was a prerequisite for the application of section 80. The court concluded that the proposed counterclaim did not meet the threshold for leave to amend and therefore dismissed the appeal with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Abacus Funds Management Ltd v Nethurst P/L & Ors [2003] QCA 423
PARTIES:	ABACUS FUNDS MANAGEMENT LTD ACN 007 415 590 (plaintiff/first respondent) v NETHURST PTY LTD ACN 069 125 275 (first defendant/first appellant) ANTOINE GHANEM AND ADRIENNE GHANEM (second defendants/second appellants) PETRIE POINT PTY LTD ACN 056 548 595 (second respondent) ANGUS WILLIAM JOHNSON (third respondent)
FILE NOS:	Appeal No 10919 of 2002 SC No 10428 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2003
JUDGES:	McMurdo P, Muir and Holmes JJ Separate reasons for judgment for each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – Amendment – where the appellants sought leave to amend their pleadings to include a counterclaim – where leave refused on the basis that the counterclaim has no prospects of success and because one of the claims was not made against the first respondent as required by r 178(1) Uniform Civil Procedure Rules 1999 (Qld) – whether the proposed pleading disclosed an arguable claim TRADE AND COMMERCE – TRADE AND COMMERCE GENERALLY – MISCELLANEOUS PROVISIONS - where the appellants’ proposed counterclaim sought relief under s 80 and declarations made pursuant to s 87 of the Trade Practices Act 1974 (Cth) – whether a nexus between the conduct the subject of the injunction sought and the contravening conduct is a necessary precondition for the application of s 80 Trade Practices Act 1974 (Cth), s 80, s 87 Uniform Civil Procedure Rules 1999 (Qld), r 178(1), r 179 Australian Consumer & Competition Commission v Office Link (Aust) Pty Ltd (1997) ATPR 41-598, referred to Australian Consumer & Competition Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79, referred to Australian Consumer & Competition Commission v Virgin Mobile Australia (2002) SCA 1548 , referred to Bahr v Nicolay (No 2) (1988) 164 CLR 604, referred to General Steel Industries v Commissioner for Railways (1964) 112 CLR 125, applied Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456, applied Truth About Motorways v Macquarie Infrastructure Investment Management [2000] HCA 11 (1999) 200 CLR 591, followed
COUNSEL:	J Bell QC, with D Kelly, for the first and second appellants M Bland for the first respondent B D O’Donnell QC for the second and third respondents
SOLICITORS:	Hopgood Ganim for the first and second appellants McCullough Robertson for the first respondent Russell & Company for the second and third respondents