McGrath v HNSW Pty Ltd

Case [2014] FCA 165

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 14
Cases 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 661
Date 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 Applicant

VICKI ELIZABETH MCGRATH
Second Applicant
AND:

HNSW PTY LIMITED
First Respondent

HORWATH MOTOR INDUSTRY SERVICES PTY LIMITED (ACN 104 835 556)
Second Respondent

DAVID ARTHUR COWPER
Third Respondent

WAYNE KENNETH PEARSON
Fourth Respondent

STAVROULA PAPADATOS
Fifth Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

4 MARCH 2014

WHERE MADE:

Continue reading McGrath v HNSW Pty Ltd

Sign in free to access the full text

Details
AGLC
McGrath v HNSW Pty Ltd [2014] FCA 165
Case
[2014] FCA 165
Decision Date

CaseChat Overview and Summary

The applicants, McGrath, sought leave to amend their statement of claim against HNSW Pty Ltd. The dispute was about whether the applicants could include new causes of action in their statement of claim that were beyond the limitation period, and if they could be held accessorily liable for misleading or deceptive conduct without pleading actual knowledge of the falsity of the representations. The matter was heard in the Federal Court.

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

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.