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Simplot Australia Pty Ltd v PSL Industries

Simplot Australia Pty Ltd v PSL Industries

Case [2001] VSC 419 5 November 2001

Breach of Contract

Statutory Interpretation

Limitation Periods

Amendment of Pleadings

Commercial Law

Contract Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6031 of 1997

SIMPLOT AUSTRALIA PTY LTD	Plaintiff
(A.C.N. 070 579 609)
v
PSL INDUSTRIES ( A.C.N. 005 560 074)
N. HARVESTERS PTY LTD (A.C.N. 009 491 669) PACIFIC DUNLOP LIMITED (A.C.N. 004 085 330)	Defendants

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2001
DATE OF JUDGMENT:	5 November 2001
CASE MAY BE CITED AS:	Simplot v PSL Industries and Ors
MEDIUM NEUTRAL CITATION:	[2001] VSC 419

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Sale of business – claims under Trade Practices Act 1974 (Cth), Fair Trading Act 1985, in contract and at common law – application for leave to amend to rely upon pre-contractual conduct of defendants – whether statement of claim in original form sufficiently raised the claim the subject of application – whether the court should consider if the claim the subject of application would be statute-barred – whether leave to amend could be granted in light of s. 82(2) Trade Practices Act and s. 37(2) Fair Trading Act – application of R. 36.01(6) of Chapter 1 – whether plaintiff had an acquired or accrued right under the Fair Trading Act 1985 at the time of its repeal on 1 September 1999 – Interpretation of Legislation Act 1984, s. 14(2)(e).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. G. Santamaria QC and Mr M. D. Wyles	Minter Ellison
For the Defendants	Mr J. Middleton, QC and Mr D.H. Denton	Freehills

HIS HONOUR:

The Appeal, the Summons and the Proceeding

Before me are an appeal filed 17 September 2001 against a Master’s orders and, following grant of special leave, a summons filed by the plaintiff on 3 October. Each pertains to the same general issue, that is, leave sought by the plaintiff to file an amended statement of claim.

The plaintiff, Simplot Australia Pty Ltd, a company incorporated on 2 August 1995, commenced a proceeding against PSL Industries Ltd, N. Harvesters Pty Ltd and Pacific Dunlop Ltd on 27 June 1997. The proceeding concerns the sale in 1995 of well known food manufacturing businesses by the first and second defendants to the plaintiff. Focussing upon the sale of the Edgell-Birds Eye and Leggo’s businesses, which is presently pertinent, the statement of claim pleads that the sale was effected by a business sale agreement and a number of asset sale agreements. It is convenient to refer to those agreements collectively as the sale of business agreements.

According to the statement of claim in its present form, warranties and undertakings were given by the first and second defendants in the various sale of business agreements which breached s. 52 of the Trade Practices Act 1974 (Cth) and the equivalent provision in the Fair Trading Act 1985.[1] Thereby loss and damage was caused.
[1]The latter Act was repealed in 1999. But any claim by the plaintiff must be made under that Act. I shall simply refer to it as the Fair Trading Act.

That is by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Simplot Australia Pty Ltd v PSL Industries

Details

AGLC: Simplot Australia Pty Ltd v PSL Industries [2001] VSC 419
Case: [2001] VSC 419
Decision Date: 5 November 2001

CaseChat Overview and Summary

Simplot Australia Pty Ltd sought to amend its statement of claim to include claims based on pre-contractual conduct by PSL Industries, which it alleged constituted misleading or deceptive conduct under the Trade Practices Act 1974, unfair and misleading conduct under the Fair Trading Act 1985, and a common law duty of disclosure. The matter was before the court to determine whether leave should be granted to amend the statement of claim to include these new claims.

The court was required to decide whether the original statement of claim sufficiently raised the claims that were the subject of the proposed amendment. The court also needed to determine if it should consider whether the claims the subject of the amendment would be statute-barred. Additionally, the court had to decide whether leave to amend could be granted in light of the relevant statutory provisions, and whether the plaintiff had an acquired or accrued right under the Fair Trading Act 1985 at the time of its repeal.

The court found that the original statement of claim did not sufficiently raise the claims the subject of the proposed amendment, but it was willing to consider whether the claims would be statute-barred. The court held that leave to amend could not be granted because the relevant statutory provisions did not permit the amendment to be made. The court also found that the plaintiff did not have an acquired or accrued right under the Fair Trading Act 1985 at the time of its repeal. Consequently, the application for leave to amend was dismissed.

The court did not make any orders as the application for leave to amend was dismissed. The court held that the plaintiff was not entitled to rely on the repealed Fair Trading Act 1985 to bring the claims the subject of the proposed amendment. The court also found that the plaintiff could not amend its statement of claim to include the new claims, and that the claims would be statute-barred.

Orders