me by M r Smith as to how the applicants put their case, I do imaginative reader could glean from a perusal of the further amended statement of claim, nevertheless I understand that it is now put that various accountants introduced them to this scheme, and in doing so implicitly represented that the promoters of the scheme, and, in particular, Gray & Winter, were reliable persons of good business repute.
not think the allegation the subject of this striking out
application is irrelevant or scandalous, in the sense that
that term is used in the context of striking out applications.
Leaving aside for the moment questions of pleading, such an allegation does not strike me at the moment as inherently irrelevant in a case of this nature. Nor does it seem
necessarily irrelevant that the person in question did have
quite recently a prohibition order made against him as a
consequence of being a director of a company which went into
liquidation and paid less than 50 cents in the dollar, or a
conviction under the Securities Industries Code.
I think, however, the way the matter appears, and particularly
in the particulars at page 121, that is Appendix B, Part sought to be put by the applicants. Without wishing to be unduly pedantic, I would point out that the confusion which has arisen underlines once again the wisdom of the rule of good pleading practice that allegations are made in the active
voice rather than the passive.
I can understand that the
allegation is embarrassing in the non-technical sense to the
gentleman concerned, but that in itself is not enough, and
once one understands that the allegation is of a
representation being made by the accountants, the fact that
the gentleman concerned also happens to be a party is merely
coincidental. The applicants should provide further and
better particulars within seven days of the particulars in
Appendix B, Part C(iv)
I will reserve the costs of the application.
I certify that this and the
preceding two (2) pages are
a true copy of the reasons
for judgment of his Honour
Mr Justice Heerey.
Dated: Id F&
nuq 19%
Associate
Cea_-
AvDearances
Counsel for the applicant:
Mr R Smith
Solicitor for the applicant:
A P Kelly & Associates
Counsel for the respondent:
Mr S Wilson QC
Solicitor for the respondent:
Gray & Winter
Date of hearing:
16 February 1995
Details
AGLC
Henderson v Amadio Pty Ltd [1995] FCA 65
Case
[1995] FCA 65
Decision Date
CaseChat Overview and Summary
In the case of Henderson v Amadio Pty Ltd, the applicants, Russell Fraser Anderson Pors, sought to hold Amadio Pty Ltd, a respondent, accountable for various alleged misrepresentations and breaches of duty in relation to a financial scheme. The dispute came before the Victoria District Registry of the General Division. The applicants alleged that the respondent's accountants had made representations about the reliability of the promoters of the scheme, namely Gray & Winter, and that these representations were misleading and contributed to their financial losses.
The primary legal issue before the court was whether the applicants' claims could proceed, focusing on the adequacy of the particulars provided in the amended statement of claim. Specifically, the court had to determine if the allegations of misrepresentation and breach of duty were sufficiently detailed and relevant to withstand a striking out application. The applicants argued that the accountants introduced them to the scheme and represented the promoters as reputable, despite knowing the promoters' questionable background. The court needed to assess the relevance of these allegations and whether they were appropriately pleaded.
The court found that while the allegations were not inherently irrelevant, they needed to be more clearly and precisely stated. Justice Heerey emphasized the importance of good pleading practice, advising that allegations should be made in the active voice to avoid confusion. The court directed the applicants to provide further and better particulars within seven days, ensuring that the claims were adequately detailed and properly pleaded. The costs of the application were reserved by the court, pending the submission of the improved particulars.