JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2022
DATE OF RULING:	24 October 2022
CASE MAY BE CITED AS:	CBRE (C) Pty Ltd v Daniel Thomas & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 636

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PRACTICE AND PROCEDURE – EQUITY AND TRUSTS – Application to join additional defendants – Application to amend pleadings – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 9.06(b)(ii), 13.10(3) – Tansley v Royal Australasian College of Surgeons [2020] VSC 587 – Finance & Guarantee Pany Pty Ltd v Auswild & Ors (No 2) [2016] VSC 59 – Accessorial liability – Second limb of Barnes v Addy (1874) LR 9 Ch App 244 – Knowing assistance – Knowing inducement – Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 – Zibara v Ultra Management (Sports) Pty Ltd (2021) 382 FCR 18 – Grimaldi v Chameleon Mining NL [No.2] (2012) 200 FCR 296 – KTC v David (No 1) [2019] NSWSC 281 – KTC v David (Pleadings) [2019] FCA 1556 – Application to join additional defendants allowed – Application to amend pleadings partly allowed and partly disallowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R P P Dalton KC with Mr D Ternovski	Moray & Agnew
For the Defendants	Mr D Guidolin	Talbot Sayer

TABLE OF CONTENTS

Application.......................................................................................................................................... 1

Material relied upon.......................................................................................................................... 1

Applicable Principles – Pleading and Amendment.................................................................... 2

1... Accessorial Liability – knowing assistance; knowing inducement................................... 2

Paragraph 13Q..................................................................................................................... 5
Ruling – paragraph 13Q........................................................................................ 6

Paragraph 13R...................................................................................................................... 6
Ruling – paragraph 13R......................................................................................... 6

Paragraph 13V...................................................................................................................... 7
Ruling – paragraph 13V........................................................................................ 7

Paragraph 13W..................................................................................................................... 8
Ruling – paragraph 13W....................................................................................... 8

Paragraph 13X...................................................................................................................... 8
Ruling – paragraph 13X......................................................................................... 9

Paragraph 13Y...................................................................................................................... 9
Ruling – paragraph 13Y....................................................................................... 10

Paragraphs 13UU and 13VV............................................................................................ 10
Ruling – paragraphs 13UU and 13VV............................................................... 11

2. LAWD inducement of breach of contract................................................................................ 11

HER HONOUR:

This ruling determines a dispute about proposed amendments to a statement of claim. As outlined below, I will give leave to amend. However, the proposed claim has parts that are allowed and others that are not. A second statement of claim must be drafted.

Application

By summons filed on 27 September 2022, the plaintiff applies to join Colin Barry Medway and Timothy Michael McKinnon as the third and fourth defendant respectively. The current defendants are Danny Thomas and LAWD Pty Ltd (‘LAWD’). Thomas is a former employee of the plaintiff. It is alleged that Medway and McKinnon and Thomas are also former employees of the plaintiff, holding director level positions. It is alleged that they are now statutory directors and senior directors at LAWD.

The plaintiff says that Medway, McKinnon and Thomas breached contractual, equitable and statutory obligations. It pleads that LAWD induced their breaches of…

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.

Continue reading CBRE (C) Pty Ltd v Daniel Thomas

Details

AGLC: CBRE (C) Pty Ltd v Daniel Thomas [2022] VSC 636
Case: [2022] VSC 636
Decision Date: 24 October 2022

CaseChat Overview and Summary

In the matter of CBRE (C) Pty Ltd v Daniel Thomas, the plaintiff, CBRE (C) Pty Ltd, sought to amend their pleadings to add additional defendants and clarify the nature of the claims against the existing defendant, Daniel Thomas. The dispute centred on allegations of accessorial liability under the second limb of Barnes v Addy, with claims of knowing assistance and inducement in a fraudulent scheme. The case was heard in the Supreme Court of Victoria.

The primary legal issues for the court to determine were whether the plaintiff was entitled to join additional defendants and whether the proposed amendments to the pleadings were permissible under the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court needed to assess if the proposed amendments would cause prejudice to the defendants and whether they were within a reasonable time frame.

The court found that the application to join additional defendants was allowable as it was not an abuse of process and the additional parties were connected to the subject matter of the proceeding. The court examined the plaintiff's ability to present a complete case and the potential for prejudice to the existing defendant. Regarding the amendments to the pleadings, the court allowed amendments that were necessary to clarify the claims and add additional causes of action but disallowed amendments that would introduce new matters not previously disclosed. The court's reasoning was grounded in the need for fair and just resolution of the dispute, considering the principles set out in Tansley v Royal Australasian College of Surgeons and other relevant cases.

The final orders of the court were that the plaintiff's application to join additional defendants was granted, and the application to amend pleadings was partly allowed and partly disallowed. The plaintiff was permitted to proceed with the amended claims against the existing and new defendants, subject to the conditions set by the court.

Orders