JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2011
DATE OF JUDGMENT:	23 November 2011
CASE MAY BE CITED AS:	CC Containers Pty Ltd & ors v Lee & ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 537

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PRACTICE AND PROCEDURE – Application to amend statement of claim – Whether proposed pleading should be allowed in the exercise of the discretion – Whether proposed statement of claim pleaded material facts – Claim of tort of conspiracy – Alleged breach of fiduciary duty by a director – Allegations of receipt of secret commission and fraud.

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TORTS – Tort of conspiracy – Combination or agreement - Requirement for intention to injure – Overt acts said to be post injury.

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S R Horgan SC with Mr J Brereton	Middletons
For the Third, Fourth and Fifth Defendants	Mr J Bock	Jack Bock Lawyers
For the Sixth Defendant	Mr R N Garratt QC with Mr B Guzzo	Doherty & Colleagues

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

Pleading and amendment principles when the claim is one of conspiracy............................ 3

The plaintiffs’ pleading against Mr Neale.................................................................................... 5

The repair fraud pleading........................................................................................................... 6
The sale of business and breach of fiduciary and statutory duties pleading.................... 12

Submissions of the parties............................................................................................................. 13

The repair fraud pleading......................................................................................................... 13
The sale of business and breach of statutory and fiduciary duties pleading.................... 17

Does the proposed amendment disclose what claim Mr Neale has to meet and is the claim arguable?.............................................................................................................................................................. 17

HER HONOUR:

Introduction

The claims in this proceeding arise out of the operation of a shipping container repair and storage business and its purchase by the first plaintiff, CC Containers Pty Ltd (“CCC”). The business was purchased from a company that is referred to by the parties as CCC Old Co. That company is in liquidation. The third plaintiff, Mediterranean Shipping Company SA (“MSC”) was engaged in the carriage of goods by sea, and the second plaintiff, Mediterranean Shipping Company (Aust) Pty Ltd (“MSCA”), arranged for its shipping containers to be repaired by CCC Old Co before February 2008. MSC is the ultimate holding company of both CCC and MSCA.

A number of allegations of fraud are made against the defendants. For the purposes of this application, the only relevant instance of alleged fraud is what is referred to as the “repair fraud”. The plaintiffs’ main claim is for the tort of conspiracy and for breach of fiduciary duty. In broad terms, it is alleged that false repair invoices (which either inflated the value of the repairs or duplicated legitimate invoices) were issued to MSC and MSCA and paid by them. The plaintiffs then allege that the moneys paid by MSC and MSCA were shared by CCC Old Co and two 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 CC Containers Pty Ltd v Lee

Details

AGLC: CC Containers Pty Ltd v Lee [2011] VSC 537
Case: [2011] VSC 537
Decision Date: 23 November 2011

CaseChat Overview and Summary

In the case of CC Containers Pty Ltd v Lee, the plaintiff sought leave to amend their statement of claim to include additional causes of action against the defendant. The plaintiff aimed to plead claims of conspiracy, breach of fiduciary duty, and receipt of secret commissions, alongside the existing claim of fraud. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the proposed amendments should be allowed, focusing on whether the additional claims were adequately pleaded and whether they introduced new material facts. The plaintiff argued that the new claims were necessary to provide a comprehensive account of the defendant's misconduct. The defendant opposed the application, asserting that the amendments were an attempt to introduce new causes of action that were not previously disclosed and would prejudice their ability to defend the case.

The court considered the criteria for allowing amendments to pleadings, emphasising the importance of allowing parties to plead their true cases while ensuring fairness to the opposing party. The court found that the proposed pleading did introduce new material facts and new causes of action, which were not adequately supported by the evidence provided. However, the court exercised its discretion to allow the amendments, provided that the defendant was given an opportunity to respond to the new claims and that any prejudice to the defendant could be mitigated. The court's decision balanced the need for a fair trial with the importance of allowing parties to present their full case.

The court granted the plaintiff leave to amend the statement of claim, subject to the conditions set out in the judgment. The defendant was required to respond to the new claims within a specified timeframe, and the trial was rescheduled to accommodate the amended pleadings. The court's ruling allowed the plaintiff to pursue their additional claims while ensuring that the defendant had a fair opportunity to defend against the new allegations.

Orders