FEDERAL COURT OF AUSTRALIA
KTC v David (Summary Dismissal) [2020] FCA 1012
File number: NSD 555 of 2019 Judge: PERRAM J Date of judgment: 17 July 2020 Catchwords: PRACTICE AND PROCEDURE – application for leave to file and serve further amended statement of claim – where proposed pleading is third attempt against Fourth and Fifth Defendants – where allegations made that Fourth and Fifth Defendants liable under second limb of Barnes v Addy (1874) LR 9 Ch App 244 – whether pleadings sufficiently allege dishonest and fraudulent designs – whether pleadings sufficiently allege knowledge of Fourth and Fifth Defendants – where Fourth and Fifth Defendants challenge pleading of underlying fiduciary duties – where Fourth and Fifth Defendants oppose granting leave to replead Legislation: Federal Court Rules 2011 (Cth) r 16.02(1)(d) Cases cited: Date of hearing: 20 December 2019 Date of last submissions: 12 February 2020 (Plaintiff) Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 43 Counsel for the Plaintiff: Mr P Collinson QC with Ms M Loughnan QC Solicitor for the Plaintiff: HWL Ebsworth Lawyers Counsel for the First Defendant: Mr J A Hogan-Doran Solicitor for the First Defendant: Aitken Lawyers Counsel for the Second and Third Defendants: Mr R A Jedrzejczyk Solicitor for Second and Third Defendants: Ashurst Australia Counsel for the Fourth and Fifth Defendants: Mr A J L Bannon SC with Mr G E S Ng Solicitor for Fourth and Fifth Defendants: YPOL Lawyers ORDERS
NSD 555 of 2019 BETWEEN: KTC
Plaintiff
AND: RODRIC DAVID
First Defendant
NAVEEN DAVID SINGH
Second Defendant
XALT PTY LTD ACN 147 571 033 (and others named in the Schedule)
Third Defendant
JUDGE:
PERRAM J
DATE OF ORDER:
17 JULY 2020
THE COURT ORDERS THAT:
1.The Plaintiff’s interlocutory application of 5 November 2019 be dismissed.
2.The Plaintiff pay the Fourth and Fifth Defendants’ costs as taxed, agreed or assessed.
3.The proceeding against the Fourth and Fifth Defendants be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
The Plaintiff applies for leave to file a further amended statement of claim. The proposed further amended statement of claim was Exhibit 1 on the application. On 24 September 2019 I dismissed an earlier application by the Plaintiff to file a further amended statement of claim on the basis that the proposed pleading was not adequate. Since there appeared to me that there might be a case secreted somewhere inside the earlier pleading I granted the Plaintiff a further opportunity to put the pleading in order. The present application is the result of that attempt.
The background to the case appears in the earlier judgment and need not be repeated here: KTC v David (Pleadings) [2019] FCA 1566 (‘First Reasons’). These reasons assume a working familiarity with the First Reasons. A description of…
Continue reading KTC v David (Summary Dismissal)
Sign in free to access the full text
- AGLC
- KTC v David (Summary Dismissal) [2020] FCA 1012
- Case
- [2020] FCA 1012
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff's proposed pleadings did not sufficiently allege dishonest and fraudulent intent or knowledge on the part of the Fourth and Fifth Defendants. The plaintiff's third attempt at amending the statement of claim failed to meet the necessary standards for alleging these elements, particularly in light of the stringent requirements set out in the case of Barnes v Addy. The court also noted that the defendants had legitimate reasons to oppose the grant of leave to replead, as the plaintiff's pleadings did not adequately address their concerns regarding the underlying fiduciary duties.
Based on the court's findings, the plaintiff's application for leave to file and serve a further amended statement of claim was dismissed. The court ordered that the plaintiff pay the costs of the Fourth and Fifth Defendants as agreed, taxed, or assessed. Furthermore, the proceedings against the Fourth and Fifth Defendants were dismissed. Entry of these orders is governed by Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The Plaintiff’s interlocutory application of 5 November 2019 be dismissed.
2. The Plaintiff pay the Fourth and Fifth Defendants’ costs as taxed, agreed or assessed.
3. The proceeding against the Fourth and Fifth Defendants be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.