SUPREME COURT OF QUEENSLAND
CITATION:
Baldwin & Anor v Icon Energy Ltd & Anor (No 2) [2015] QSC 286
PARTIES:
RONALD WILLIAM BALDWIN
(first plaintiff)
SOUTHERN FAIRWAY INVESTMENTS PTY LTD
ACN 115 060 378
(second plaintiff)v
ICON ENERGY LIMITED
ACN 058 454 569
(first defendant)
JAKABAR PTY LIMITED
ACN 058 454 765(second defendant)
FILE NO/S:
SC No 3667 of 2014
DIVISION:
Trial Division
PROCEEDING:
Application to amend pleadings
Application to strike out pleadings
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
15 October 2015
DELIVERED AT:
Brisbane
HEARING DATE:
25 June 2015; Further written submissions received 31 July 2015; 10 August 2015
JUDGE:
Philip McMurdo J
ORDER:
The orders will be as follows:
1. On the plaintiffs’ application filed on 12 May 2015:
(a) the plaintiffs have leave to amend the claim by adding claims for damages and exemplary damages for deceit;
(b) the plaintiffs have leave to amend the Further Amended Statement of Claim to plead that claim for deceit, substantially in accordance with the terms of the pleading of that cause of action in a draft Second Further Amended Statement of Claim delivered by the plaintiffs to the defendants on 17 July 2015;
(c) the application be otherwise dismissed.
2. On the defendants’ application filed on 15 May 2015:
(a) paragraphs 42 to 84 of the Further Amended Statement of Claim be struck out;
(b) the first plaintiff will have leave to re-plead his case consistently with these reasons for judgment;
(c) the second plaintiff will have leave to re-plead its case in deceit according to the above order.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where the second plaintiff amended its statement of claim reformulating its claims for breach of contract pleading a different legal entitlement under that contract – plaintiff pleaded that it suffered loss and damage not from the loss of the benefit of the MOU but from its having spent money in ignorance of the fact that the defendants never intended to perform the MOU and to enter into a concluded gas supply agreement – where the defendants argued the amended pleading should be struck out – where the second plaintiff sought leave to amend its claim to include allegations of a contravention of section 52 of the Trade Practices Act 1974 (Qld), breach of fiduciary duty and deceit – where the first plaintiff claimed damages for breach of contract and the defendants argued that this claim should be summarily dismissed – where the first plaintiff’s pleading was deficient and failed to inform the defendants of the plaintiff’s case regarding the particular construction of a contractual clause it advanced and the facts by which he said he was entitled to be issued an option to purchase shares under the contract – where the defendants strike out application in relation to the first plaintiff’s claim was successful but the first plaintiff was granted leave to re-plead
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- Case
- [2015] QSC 286
- Decision Date
CaseChat Overview and Summary
The plaintiffs sought to amend their claims to include new allegations. The second plaintiff attempted to add claims for contravention of section 52 of the Trade Practices Act 1974 (Qld), breach of fiduciary duty, and deceit. The court examined whether these amendments could be made under rule 376(4) of the Uniform Civil Procedure Rules (UCPR). It was determined that the claim for contravention of section 52 was statute-barred as it introduced a factual case of fraudulent intent, which precluded the operation of rule 376(4). The claim for breach of fiduciary duty was refused as it was clearly without merit. However, the court allowed the amendment for the deceit claim, as the limitation period for fraud does not begin until the fraud is or could be discovered, according to section 38 of the Limitation of Actions Act 1974 (Qld).
The court also considered the defendant's application to strike out parts of the plaintiffs' claims. The court granted the application to strike out paragraphs 42 to 84 of the Further Amended Statement of Claim, as the first plaintiff's pleading was deficient and failed to inform the defendants of the plaintiff's case regarding the particular construction of a contractual clause. However, the first plaintiff was granted leave to re-plead the case. The second plaintiff was granted leave to re-plead its case in deceit according to the above order.
The final orders were that the plaintiffs were granted leave to amend their claims by adding claims for damages and exemplary damages for deceit. The plaintiffs were also granted leave to amend the Further Amended Statement of Claim to plead that claim for deceit, substantially in accordance with the terms of the pleading of that cause of action in a draft Second Further Amended Statement of Claim delivered by the plaintiffs to the defendants. The application was otherwise dismissed. The defendants' application to strike out paragraphs 42 to 84 of the Further Amended Statement of Claim was granted, and the first plaintiff was granted leave to re-plead the case. The second plaintiff was granted leave to re-plead its case in deceit according to the above order.
Orders
Orders of the court
The orders will be as follows:
1. On the plaintiffs’ application filed on 12 May 2015:
(a) the plaintiffs have leave to amend the claim by adding claims for damages and exemplary damages for deceit;
(b) the plaintiffs have leave to amend the Further Amended Statement of Claim to plead that claim for deceit, substantially in accordance with the terms of the pleading of that cause of action in a draft Second Further Amended Statement of Claim delivered by the plaintiffs to the defendants on 17 July 2015;
(c) the application be otherwise dismissed.
2. On the defendants’ application filed on 15 May 2015:
(a) paragraphs 42 to 84 of the Further Amended Statement of Claim be struck out;
(b) the first plaintiff will have leave to re-plead his case consistently with these reasons for judgment;
(c) the second plaintiff will have leave to re-plead its case in deceit according to the above order.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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