Harmonious Blend Building Corporation Pty Ltd v Keene

In the case of Harmonious Blend Building Corporation Pty Ltd v Keene, the plaintiff, a corporate trustee of a unit trust, sought to amend its statement of claim to allege that the defendants' conduct, which involved posting misleading statements on a product review website, constituted misleading or deceptive conduct in trade or commerce. The plaintiff sought compensation for reputational damage. The court had to determine whether the conduct was sufficiently pleaded to be in trade or commerce and whether the plaintiff adequately pleaded the cause of the loss and damage.

The court held that the conduct in question was not adequately pleaded as conduct in trade or commerce. It was necessary for the plaintiff to demonstrate how the conduct was part of a broader course of conduct that involved trade or commerce. Additionally, the court found that the plaintiff had not adequately pleaded the cause of the loss and damage from the conduct. The court noted that the plaintiff would need to show how the conduct directly caused the alleged reputational damage.

The court granted the plaintiff leave to amend its statement of claim but ordered the plaintiff to provide security for the future costs of the defendants. The court held that the plaintiff, as a corporate trustee, had uncertain rights of indemnity against the trust assets. This created a risk that the plaintiff would be unable to pay the costs on demand. The court concluded that there was no risk of stultification and that the persons standing behind the plaintiff should put up security for the future costs. The court ordered the plaintiff to provide security for the defendants' future costs in accordance with section 1335(1) of the Corporations Act 2001 (Cth) and rule 62.02 of the Supreme Court (General Civil Procedure) Rules 2005.