Takemoto v Moody’s Investors Service Pty Limited (No 2) [2014] FCA 1406; Application for leave to appeal: Takemoto v Moody’s Investors Service Pty Limited

Case [2014] FCA 1406


FEDERAL COURT OF AUSTRALIA

Takemoto v Moody’s Investors Service Pty Limited (No 2) [2014] FCA 1406

Citation:

Appeal from:

Takemoto v Moody’s Investors Service Pty Limited (No 2) [2014] FCA 1406

Application for leave to appeal: Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081

Parties: KAZUMI TAKEMOTO v MOODY'S INVESTORS SERVICE PTY LIMITED
File number: NSD 1093 of 2014
Judge: ALLSOP CJ
Date of judgment: 18 December 2014
Catchwords: PRACTICE AND PROCEDURE – whether to grant applicant leave to appeal – whether sufficient evidence to found matters pleaded - leave denied – application dismissed – no question of principle
Legislation: Trade Practices Act 1974 (Cth) s 51A
Cases cited: Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081
Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1403
Date of hearing: 18 December 2014
Place: Sydney
Division:

GENERAL DIVISION

Category: Catchwords
Number of paragraphs: 8
Counsel for the Applicant: Mr J Berwick
Solicitor for the Applicant: Craddock Murray Neumann Lawyers
Counsel for the Respondent: Mr C Bova
Solicitor for the Respondent: King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1093 of 2014

BETWEEN:

KAZUMI TAKEMOTO
Applicant

AND:

MOODY'S INVESTORS SERVICE PTY LIMITED
Respondent

JUDGE:

ALLSOP CJ

DATE OF ORDER:

18 DECEMBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The amended application for leave to appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1093 of 2014

BETWEEN:

KAZUMI TAKEMOTO
Applicant

AND:

MOODY'S INVESTORS SERVICE PTY LIMITED
Respondent

JUDGE:

ALLSOP CJ

DATE:

18 DECEMBER 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

  1. This is an application for leave to appeal against Order 3 made by the primary judge on 28 October 2014, in which the primary judge refused the applicant’s interlocutory application, signed 17 September 2014.  That application was one which sought to further amend the pleadings in accordance with the second further amended statement of claim annexed to the affidavit of Mr Twemlow, sworn 17 September 2014.  The background to this application today is to be found in the primary judge’s reasons in this matter in Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081 published on 10 October 2014 and in my ex tempore reasons in Takemoto v Moody’s Investors Service Pty Limited (No 2) [2014] FCA 1403 published on 1 December 2014.

  2. It is necessary, however, to repeat some matters that are essential for understanding the case.  The paragraphs in the further amended statement of claim which were principally relevant to today’s application were the matters and representations set out in the trade practices claim at [30] and following.  This can be seen by reference to the draft further amended notice of appeal, which is attached to Mr Twemlow’s affidavit of 2 December 2014 that was put on for the purposes of the argument…

Continue reading Takemoto v Moody’s Investors Service Pty Limited (No 2) [201...

Sign in free to access the full text

Details
AGLC
Takemoto v Moody’s Investors Service Pty Limited (No 2) [2014] FCA 1406; Application for leave to appeal: Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1406
Case
[2014] FCA 1406
Decision Date

CaseChat Overview and Summary

The applicant, Takemoto, sought leave to appeal against the decision of the Federal Court which dismissed his claim for damages against the respondent, Moody’s Investors Service Pty Limited. The claim arose from a credit rating issued by Moody’s which Takemoto alleged was negligently prepared and defamatory. Takemoto argued that the credit rating contained false and misleading information and that Moody’s failed to exercise reasonable care and skill in preparing the rating. The primary judge found that Takemoto had not discharged the onus of proving his case on the balance of probabilities.

The legal issue before the court was whether the applicant had demonstrated a sufficient evidentiary foundation for the matters pleaded in his amended statement of claim. The court had to consider whether the applicant had adduced sufficient evidence to establish that the credit rating contained false and misleading information and that Moody’s had failed to exercise reasonable care and skill in preparing the rating. The court also had to consider whether the applicant had demonstrated that the credit rating was defamatory and that Moody’s was liable for damages.

The court found that the applicant had not demonstrated a sufficient evidentiary foundation for the matters pleaded in his amended statement of claim. The court found that the applicant had not provided any evidence to support his allegations of negligence and defamation and that the applicant had failed to discharge the onus of proof on the balance of probabilities. The court held that the applicant had not demonstrated that there was a reasonable possibility that the appeal would succeed. The court found that the applicant had not identified any error of law or fact that would warrant the grant of leave to appeal. The court held that the appeal would not raise any question of principle of general importance.

The court dismissed the application for leave to appeal and ordered that the amended application for leave to appeal be dismissed with costs. The court held that the applicant had not demonstrated that there was a sufficient evidentiary foundation for the matters pleaded in his amended statement of claim. The court held that the applicant had not identified any error of law or fact that would warrant the grant of leave to appeal. The court held that the appeal would not raise any question of principle of general importance. The court ordered that the amended application for leave to appeal be dismissed with costs.

Orders

Orders of the court

1. The amended application for leave to appeal be dismissed with costs.

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.