Perazzoli v BankSA (No 5)

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FEDERAL COURT OF AUSTRALIA

Perazzoli v BankSA (No 5) [2018] FCA 1187

File number: SAD 307 of 2014
Judge: WHITE J
Date of judgment: 10 August 2018
Catchwords: PRACTICE AND PROCEDURE – application for leave to amend originating application and statement of claim – Respondent opposes grant of leave – whether proposed pleadings are sufficient – leave to amend refused.
Legislation:

Australian Securities and Investments Commission Act 2001 (Cth) s 12DA

Corporations Act 2001 (Cth) ss 911A, 1041H

Federal Court of Australia Act 1976 (Cth) s 33, 33C, 33H, 33N

Federal Court Rules 2011 (Cth) rr 9.03, 9.08, 16.42, 16.43

Cases cited:

Baden v Société Générale pour Favoriser Le Développement Du Commerce et De L’Industrie en France S.A. [1993] 1 WLR 509

Barnes v Addy (1874) 9 Ch App 244

Branir v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Connell v Nevada Financial Group Pty Ltd (1996) 139 ALR 723

Consul Development Pty Ltd v D.P.C. Estates Pty Ltd (1975) 132 CLR 373

Dillion v RBS Group (Australia) Pty Ltd [2017] FCA 896; (2017) 252 FCR 150

Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Forest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486

Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296

Guglielmin v Trescowthick (No 2) [2005] FCA 138; (2005) 220 ALR 515

Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110

Meaden v Bell Potter Securities [2011] FCA 136

Melbourne City Investments Pty Ltd v Leighton Holdings Limited [2014] VSC 7

Murphy v Overton Investments Pty Ltd [1999] FCA 689

Perazzoli v BankSA [2015] FCA 373

Perazzoli v BankSA (No 2) [2016] FCA 260

Perazzoli v BankSA (No 3) [2016] FCA 677

Perazzoli v BankSA (No 4) [2016] FCA 725

Perazzoli v BankSA, a Division of Westpac Banking Corporation Limited [2017] FCAFC 204

Peter Hanne & Associates Pty Ltd v Village Life Ltd [2008] FCA 719

Philip Morris (Australia) Ltd v Nixon [2000] FCA 229; (2000) 170 ALR 487

Silkfield Pty Ltd v Wong (1998) 90 FCR 152

Timbercorp Finance Pty Ltd (in liquidation) v Collins [2016] HCA 44; (2016) 259 CLR 212

Webster (Trustee) v Murray Goulburn Co‑Operative Co Ltd (No 2) [2017] FCA 1260

Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255

Young Investments Group Pty v Mann [2012] FCAFC 107; (2012) 293 ALR 537

Date of hearing: 16 May 2018
Registry: South Australia
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Corporations and Corporate Insolvency
Category: Catchwords
Number of paragraphs: 111
Counsel for the Applicants: Mr M Hoffmann QC with Mr S Evans
Solicitor for the Applicants: Johnson Winter & Slattery
Counsel for the First Respondent: Mr B Roberts SC with Mr T Besanko

Solicitor for the First Respondent:

Allens
Table of Corrections
13 August 2018 On…
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Details
Case
[2018] FCA 1187
Decision Date

CaseChat Overview and Summary

Perazzoli v BankSA (No 5) involved an application for leave to amend an originating application and statement of claim, with the respondent opposing the grant of leave. The court was required to determine whether the proposed pleadings were sufficient to justify an amendment. The key issue was whether the applicants could proceed with their proposed second amended originating application and second amended statement of claim in the form presented. Additionally, the court considered whether the proposed pleadings were sufficient to warrant the grant of leave to amend.

The court found that the proposed pleadings were not sufficient to justify an amendment in the form presented. The applicants had proposed eight questions said to be common to all group members, only one of which directly concerned the representations made by Mr Samra. The court noted that this was sufficient to distinguish the case from Connell v Nevada. The court also noted that consideration of whether the question concerning the representations was truly a question common to all group members should be deferred until the applicants finalised their pleadings. The court concluded that leave to amend the second amended originating application and second amended statement of claim in the proposed form should be refused.

The court granted leave to the applicants to join Antonietta Perazzoli, Susan Ferluga, and Renato Ferluga as the fourth, fifth, and sixth applicants, respectively, and to disjoin William Johnson as the third applicant. The court also granted leave to the applicants to disjoin Michael Christopher Samra as the second respondent and as trustee of the Michael Christopher Samra Family Trust trading as Adelaide Lending Centre ABN 69 787 153 821 as the third respondent. However, the court refused leave to the applicants to amend the second amended originating application and second amended statement of claim in the proposed form. The applicants were granted liberty to propose amended documents in a different form.

The court ordered that the applicants had leave to join Antonietta Perazzoli, Susan Ferluga, and Renato Ferluga as the fourth, fifth, and sixth applicants, respectively, and to disjoin William Johnson as the third applicant. The court also ordered that the applicants had leave to disjoin Michael Christopher Samra as the second respondent and as trustee of the Michael Christopher Samra Family Trust trading as Adelaide Lending Centre ABN 69 787 153 821 as the third respondent. The court refused leave to the applicants to amend the second amended originating application and second amended statement of claim in the proposed form. The applicants were granted liberty to propose amended documents in a different form.

Orders

Orders of the court

1. The Applicants have leave to:

(a) join Antonietta Perazzoli, Susan Ferluga and Renato Ferluga as Fourth, Fifth and Sixth Applicants respectively;

(b) disjoin William Johnson as the Third Applicant;

(c) disjoin Michael Christopher Samra as the Second Respondent;

(d) disjoin Michael Christopher Samra as trustee of the Michael Christopher Samra Family Trust trading as Adelaide Lending Centre ABN 69 787 153 821 as the Third Respondent.

2. Leave to the Applicants to amend the Second Amended Originating Application and Second Amended Statement of Claim in the proposed form is refused.

3. There be liberty to the Applicants to propose amendments to the Second Amended Originating Application and Second Amended Statement of Claim in a different form.

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

In the present case, the 2ASOC identifies eight questions said to be common to all Group Members. Only one of these concerns directly the representations made by Mr Samra. That is sufficient by itself for Connell v Nevada to be distinguished. The question concerning the representations is: (e)whether the representations made by Samra referred to in paragraph 11 of the SASOC were fraudulent. …Consideration of whether this is truly a question common to all Group Members should be deferred until the Applicants finalise their pleadings.Conclusion The submissions of the parties canvassed a number of further matters. However, as I consider that leave to amend the 2AOA and the 2ASOC should be refused in any event, it is not necessary to address these matters. As noted at the commencement of these reasons, BankSA did not oppose the grant of leave to the Applicants to:(a)join Antonietta Perazzoli, Susan Ferluga and Renato Ferluga as the Fourth, Fifth and Sixth Applicants respectively;(b)disjoin William Johnson as the Third Applicant;(c)disjoin Michael Christopher Samra as the Second Respondent; and(d)disjoin Michael Christopher Samra as trustee of the Adelaide Lending Centre ABN 69 787 153 821 as the Third Respondent.There will be a grant of leave to that effect. Leave to the Applicants to amend the 2AOA and 2ASOC is refused. The Applicants have liberty to propose amended documents in different form. I expect that, when preparing their amendments, the Applicants will take account of the remaining critiques of BankSA. I will hear from the parties as to the time in which the Applicants are to present any further amendments and with respect to costs.

Ratio Decidendi

Legal Principle Established

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