In the matter of Norman Nominees Pty Ltd (in liq) & Ors v Zervos Pty Ltd

In the Queensland Supreme Court, the plaintiffs sought to amend their statement of claim to add new causes of action, arguing that the original statement of claim was filed out of time under the Commonwealth statutory limitation period set out in section 588FF(5) of the Corporations Act 2001 (Cth). The plaintiffs also sought to add a new cause of action under the Australian Consumer Law, as incorporated into the Competition and Consumer Act 2010 (Cth). The defendants opposed the application, arguing that the proposed amendments would be futile and that the court should not allow the amendments to be made out of time. The court was required to decide whether the plaintiffs could amend their statement of claim to add new causes of action, and if so, whether the proposed amendments were permissible under the relevant limitation periods and procedural rules.

The court held that the plaintiffs could not amend their statement of claim to add new causes of action as the proposed amendments would be futile. The court found that the Commonwealth statutory limitation period in section 588FF(5) of the Corporations Act 2001 (Cth) was a relevant period of limitation for the purposes of rule 376 of the Supreme Court (General Civil Procedure) Rules 2018 (Qld). The court also held that section 81 of the Supreme Court Act 1991 (Qld) was not a separate source of power to amend in respect of Commonwealth causes of action. The court further found that the proposed amendments were out of time and that the discretion not to allow amendments which would be futile applied in this case.

The court struck out certain paragraphs of the statement of claim and granted the plaintiffs leave to amend their originating application in certain respects, but denied leave to amend in certain other respects. The court also ordered the plaintiffs to pay the defendants’ costs of and incidental to the application. The court held that the proposed amendments were substantially the same facts as the original statement of claim, and that the plaintiffs had not shown any special or unusual circumstances that would warrant the court allowing the amendments to be made out of time. The court also found that the proposed amendments would be futile as the defendants had already raised objections to the original statement of claim and the court had already ruled on the merits of the case.