Dig It Landscapes Pty Ltd (in liq) v Bupa Aged Care Australia Pty Ltd

In the case of Dig It Landscapes Pty Ltd (in liq) v Bupa Aged Care Australia Pty Ltd, the applicant, Dig It Landscapes, sought leave to amend its pleadings to expressly rely on section 4 of the Australian Consumer Law in its claim for misleading and deceptive conduct under section 18 of the Australian Consumer Law. The dispute was heard in the Federal Court of Australia. The applicant aimed to include a specific allegation that the respondent, Bupa Aged Care Australia, had contravened section 4 by engaging in conduct in the course of its business that was misleading or deceptive.

The court had to decide whether the applicant should be granted leave to amend its pleadings to include this additional reliance on section 4, given that it was not explicitly mentioned in the original pleadings. The court also considered whether the amendment would comply with procedural fairness and case management principles, particularly in light of the respondent's lack of prior notice regarding the reliance on section 4.

The court found that the applicant's request for leave to amend was ambiguous as to whether the alleged representations were related to future matters, which could affect the respondent's ability to defend the claim. Additionally, the applicant had not clearly indicated that it intended to rely on section 4, which was necessary to put the respondent on notice. The court concluded that the longer period of notice required for procedural fairness was not met and that granting leave to amend would be inconsistent with case management principles. Consequently, the court refused the application for leave to amend except for the agreed amendments.

The court ordered that the applicant could amend the pleadings to the extent specified in paragraph 1(a) of the proposed orders, with the further amended statement of claim to be filed and served by a specified deadline. The applicant was also required to pay the respondent's costs associated with the allowed amendment. The time for compliance with a previous order was extended to accommodate the filing of the further amended statement of claim.