FEDERAL COURT OF AUSTRALIA
McGrath v HNSW Pty Limited [2014] FCA 165
Citation: McGrath v HNSW Pty Limited [2014] FCA 165 Parties: JOHN ALBERT BRUCE MCGRATH and VICKI ELIZABETH MCGRATH v HNSW PTY LIMITED, HORWATH MOTOR INDUSTRY SERVICES PTY LIMITED (ACN 104 835 556), DAVID ARTHUR COWPER, WAYNE KENNETH PEARSON and STAVROULA PAPADATOS File number: NSD 1867 of 2012 Judge: COWDROY J Date of judgment: 4 March 2014 Catchwords: PRACTICE AND PROCEDURE – pleadings – leave to amend – whether the Federal Court Rules 2011 (Cth) allow for the inclusion of new causes of action in a statement of claim that are beyond the limitation period
PRACTICE AND PROCEDURE – pleadings – whether a party who seeks to allege that a person is accessorily liable for the misleading or deceptive representations of another must plead that such person actually knew of the falsity or baselessness of the representation
Legislation: Federal Court of Australia Act 1976 (Cth) s 59
Trade Practices Act 1974 (Cth) ss 52, 75B, 82
Law and Justice Legislation Amendment Act 1994 (Cth) s 44
Federal Court Rules 2011 (Cth) rr 1.32, 1.33, 1.35, 8.21, 16.51, 16.53
Federal Court Rules 1979 (Cth) O 13 r 2
Fair Trading Act 1987 (NSW) s 68
Limitation Act 1969 (NSW) s 14Cases cited: Australian Competition and Consumer Commission v TF Woollam & Son Pty Ltd (2011) 196 FCR 212
Australian Securities and Investments Commission v Australian Property Custodian Holdings Ltd(No 2) (2013) 213 FCR 289
Baldry v Jackson [1976] 2 NSWLR 415
Environinvest Ltd (in liq) v Former Partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller (2012) 208 FCR 376
Fernandez v Glev Pty Ltd [2000] FCA 1859
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216
Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1
Nella v Kingia Pty Ltd (1986) ATPR 40-723
Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Ltd (2012) 202 FCR 158
Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1
University of Sydney v ResMed Ltd (No 5) [2012] FCA 232
Wardley Australia Limited v The State of Western Australia (1992) 175 CLR 514
Weldon v Neal (1887) 19 QBD 394
Yorke v Lucas (1985) 158 CLR 661Date of hearing: 15 November 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 57 Counsel for the Applicants: Mr AP Spencer with Mr CE Bannan Solicitor for the Applicants: Matthews Folbigg Counsel for the Respondents: Mr SA Lawrance Solicitor for the Respondents: Allens
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1867 of 2012
BETWEEN: JOHN ALBERT BRUCE MCGRATH
First ApplicantVICKI ELIZABETH MCGRATH
Second ApplicantAND: HNSW PTY LIMITED
First RespondentHORWATH MOTOR INDUSTRY SERVICES PTY LIMITED (ACN 104 835 556)
Second RespondentDAVID ARTHUR COWPER
Third RespondentWAYNE KENNETH PEARSON
Fourth RespondentSTAVROULA PAPADATOS
Fifth Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
4 MARCH 2014
WHERE MADE:
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- AGLC
- McGrath v HNSW Pty Ltd [2014] FCA 165
- Case
- [2014] FCA 165
- Decision Date
CaseChat Overview and Summary
The court had to decide if the applicants could include new causes of action in their amended statement of claim that were beyond the limitation period, and if the applicants were required to plead actual knowledge of the falsity of the representations to be held accessorily liable. The applicants argued that they should be permitted to amend their statement of claim to include new causes of action, despite the limitation period, and that they did not need to plead actual knowledge of the falsity of the representations to be held accessorily liable.
The court found that the Federal Court Rules 2011 (Cth) do allow for the inclusion of new causes of action in an amended statement of claim that are beyond the limitation period, provided certain conditions are met. However, the court also found that a party who seeks to allege that a person is accessorily liable for the misleading or deceptive representations of another must plead that such person actually knew of the falsity or baselessness of the representation. The court granted the applicants leave to file an amended statement of claim, but dismissed their interlocutory application otherwise. The costs of the interlocutory application were reserved until the final hearing.
The applicants were granted leave to file an amended statement of claim in accordance with the reasons for judgment. The interlocutory application was otherwise dismissed, and the costs of the interlocutory application were reserved until the final hearing.
Orders
Orders of the court
1. The applicants be granted leave to file an amended statement of claim in accordance with the reasons for judgment delivered on 4 March 2014.
2. The applicants’ interlocutory application filed 24 September 2013 (‘the interlocutory application’) be otherwise dismissed.
3. The costs of the interlocutory application be reserved until the final hearing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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