Fencott, B.E. & Assoc. Pty Ltd v Eretta Pty Ltd

[1986] FCA 370

NOT CONSIDERED SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
WESTERN AUSTRALIA DISTRICT REGISTRY	) No. 8 3 of 1986
)

DIVISION	GENERAL	)
BETWEEN :

BRYAN E. FENCOTT AND

ASSOCIATES PTY LIMITED

Applicant

ERETTA PTY LIMITED

First Respondent

AND: -

JOHN COOKE

Second Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J .

This application relates to three groups of amendment

sought to be made to the Statement of Claim. The flrst concerns

the basis of the claim against the first respondent and is not

opposed. The second concerns a proposed claim under s . 5 2 of the Trade Practices Act 1974 against the companies sought to be joined as third, fourth and fifth respondents by amendment of the Statement of Claim. It is conceded that that claim is already

barred by the limitation provision In the Trade Practices Act

1974, s . 8 2 ( 2 ) , and the amendment is opposed. After some

argument, counsel for the applicant indicated that he did not any

longer press this amendment.

2.

The third group of amendments is sought to raise a claim

knowingly or with constructive knowledge, parties to breaches of

fiduciary duty which are alleged against the first respondent,

and are themselves liable as fiduciaries. It is not suggested

that I should refuse this group of amendments as clearly outside

the accrued jurisdiction of the Court, nor do I think I should

refuse them on that ground. What was argued was that the

drafting was unnecessarlly confusing and the actual claims made

were unclear. After some argument, I stood the matter over to

today to enable a re-draft of the proposed amended Statement of

that the proposed third, fourth and fifth respondents were, category and eliminating those in the second.

I have now received a re-draft of pages 8 to 11

inclusive of the previously submitted further amended Statement of Claim. The further amended Statement of Claim in question has been marked as Exhibit A in this application, and I will have the substituted pages 8 to 11 marked as Exhiblt B.

I allow the amendments as set forth in Exhibit A

substituting the pages	in Exhibit B for the corresponding pages
in Exhibit A.

I certify that this and the

preceding one ( 1 ) page are a

true copy of the Reasons for

Judgment herein of his Honour

Mr. Justice Burchett.

C L &dai

..

Associate

Dated: 20 August, 1986.