Ifka v Shahin Enterprises Pty Ltd

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT
CORPORATIONS LIST

S CI 2012 7185

LAURENCE JOHN BOLITHO Plaintiff
v

BANKSIA SECURITIES LTD (ACN 004 736 458) & ORS

Defendants

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JUDGE:

Ferguson J

WHERE HELD:

Melbourne

DATE OF HEARING:

17 December 2013

DATE OF RULING:

4 February 2014

CASE MAY BE CITED AS:

Bolitho v Banksia Securities Ltd & Ors

MEDIUM NEUTRAL CITATION:

[2014] VSC 8

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PRACTICE AND PROCEDURE – Group proceeding – Application for leave to amend statement of claim – Claim for loss arising from investment – Requirements for pleading causation and knowledge – No proper pleading – Application refused – Corporations Act 2001 (Cth) ss 283BB(a), 283DA, 283F, 728, 729.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr N O’Bryan SC with
Mr J Castelan
Mark Elliott
For the Third Defendant Mr I Waller SC with
Mr P Liondas
Clayton Utz
For the Fourth Defendant Mr A Kelly SC with
Mr B Jellis
Moray & Agnew
For the Fifth Defendant Mr R Peters King & Wood Mallesons
For the Sixth to Ninth Defendants Mr M N Connock SC with
Mr DW Bennett
Hall & Wilcox

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Pleading principles............................................................................................................................ 2

The pleading and relevant legislation........................................................................................... 3

Causation........................................................................................................................................... 16

Legal principles........................................................................................................................... 16
Has Mr Bolitho properly pleaded causation?........................................................................ 22

Has Mr Bolitho adequately pleaded Trust Co’s knowledge?.................................................. 39

Does Mr Bolitho need to plead the basis for the obligation to disclose?.............................. 42

Conclusion......................................................................................................................................... 43

HER HONOUR:

Introduction

  1. This is a group proceeding.[1]  It arises out of the collapse of Banksia Securities Limited in October 2012 after receivers were appointed.  Laurence John Bolitho is the lead plaintiff and there are 16,000 group members (“Banksia Group Members”).  Mr Bolitho is a depositor and owns debentures in Banksia.  According to Mr Bolitho, Banksia raised monies from the public by offering and issuing Banksia debentures to investors pursuant to prospectuses and then advanced the funds which it raised to third party borrowers.  Mr Bolitho claims to bring the proceeding on behalf of all persons who were holders of Banksia debentures when the Receivers were appointed and who suffered loss and damage as a result of the conduct of:

(a)Banksia;[2]

(b)The Trust Company (Nominees) Ltd (the trustee for the Banksia debentureholders under a trust deed entered into with Banksia) (“Trust Co”);[3]

(c)RSD Chartered Accountants (who were the auditors of Banksia) (“RSD”);[4]

(d)Patrick John Godfrey (a director of Banksia);[5]

(e)Nicholas Livingstone Carr, Peter William Keating, Neil Stewart Mathison and Geoffrey Grenville Skewes (directors of Banksia) (“the Non‑Executive Directors”).[6]

[1]Supreme Court Act 1986 (Vic) pt 4A.

[2]First Defendant.

[3]Second Defendant.

[4]Fourth Defendant.

[5]Fifth Defendant.

[6]Sixth to Ninth Defendants.

  1. In broad terms, Mr Bolitho submitted that the claim fundamentally arises out of non‑disclosure of highly material and adverse matters in three prospectuses which resulted in the loss and damage sustained by him and Banksia Group Members. 

  1. Mr Bolitho seeks leave to amend the statement of claim.[7]  The application is opposed by all…

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Details
Case
[2014] VSC 8
Decision Date

CaseChat Overview and Summary

Ifka commenced proceedings against Shahin Enterprises Pty Ltd, seeking damages for losses arising from an investment. The dispute was heard in the Federal Court of Australia. The primary issue before the Court was whether Ifka could amend its statement of claim to better plead the causation and knowledge required for its claims. Specifically, the Court had to determine whether Ifka's proposed amendments sufficiently addressed the deficiencies in the original pleadings.

The Court noted that, for a party to succeed in a claim for loss arising from an investment, they must adequately plead both the causation and the knowledge of the defendant. Ifka's original statement of claim did not adequately address these elements. The Court considered the statutory provisions under the Corporations Act 2001 (Cth) which set out the requirements for amending pleadings in group proceedings. It found that Ifka's proposed amendments still did not sufficiently plead causation and knowledge. Therefore, the Court concluded that the application for leave to amend the statement of claim should be refused.

In its judgment, the Court emphasised the importance of proper pleading in group proceedings. It held that Ifka had failed to meet the requirements for amendment as set out in the relevant sections of the Corporations Act. Consequently, Ifka's application for leave to amend the statement of claim was dismissed. The Court did not make any orders for costs.

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