Tassal Ltd v Russfal Pty Ltd - [2005] TASSC 92

[2005] TASSC 92

CITATION: Tassal Ltd v Russfal Pty Ltd [2005] TASSC 92

PARTIES: TASSAL LTD (ABN 64 009 548 770)
(RECEIVERS & MANAGERS APPOINTED)

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)
v
RUSSFAL PTY LTD (ABN 45 009 555 980)
DOEDENS, Richard John
RAADAS SALMON PTY LTD (ABN 39 083 124 565)
RUSSELL FALLS PTY LTD (ABN 13 009 495 470)
RAADAS HOLDINGS PTY LTD (ABN 41 083 124 510)
RAADAS PTY LTD (ABN 86 079 001 871)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  183/2003
DELIVERED ON:  23 September 2005
DELIVERED AT:  Launceston
HEARING DATES:  7, 8 April 2005
JUDGMENT OF:  Crawford J

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under rules of court – Amendments – Statement of claim – Whether claims made with bad faith – Whether claims untenable.
Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
             Plaintiffs/Applicants:  J B R Beach QC and S Sharpley
             Defendants/Respondents:              S S W Couper QC and D A Bessell
Solicitors:
             Plaintiffs/Applicants:  Mallesons Stephen Jaques
             Defendants/Respondents:              Page Seager

Judgment Number: [2005] TASSC 92
Number of paragraphs: 80

Serial No 92/2005
File No 183/2003

TASSAL LTD (ABN 64 009 548 770)
(RECEIVERS & MANAGERS APPOINTED) and
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED (ACN 005 357 522)
v RUSSFAL PTY LTD (ABN 45 009 555 980),
RICHARD JOHN DOEDENS,
RAADAS SALMON PTY LTD (ABN 39 083 124 565),
RUSSELL FALLS PTY LTD (ABN 13 009 495 470),
RAADAS HOLDINGS PTY LTD (ABN 41 083 124 510)
and RAADAS PTY LTD (ABN 86 079 001 871)

REASONS FOR JUDGMENT CRAWFORD J

23 September 2005

The plaintiffs sued the first to fifth defendants on 16 April 2003. A statement of claim was included in the writ. Subsequently, the sixth defendant was added. The statement of claim was amended on 1 March 2004. In October 2004 the plaintiffs changed their solicitors and different counsel were briefed to appear for the plaintiffs in the action. On 18 October 2004, the defendants' solicitors wrote to the plaintiffs' new solicitors, claiming that there were a number of deficiencies in substance and form in the amended statement of claim and referring to a number of paragraphs they considered were in that category. They invited the plaintiffs' solicitors to produce a further amended statement of claim.

Following a review of the pleadings and documents discovered by the parties, and a consideration of the matters raised in the letter from the defendants' solicitors, the plaintiffs determined to make further amendments. On 6 December 2004 it was ordered by consent that they serve a draft further amended statement of claim on the defendants on or before 24 January 2005. The plaintiffs did so on 25 January and they requested the defendants to consent to the plaintiffs being granted leave to file and serve the proposed amended pleading. The defendants refused to consent. On 1 February it was ordered by consent that the plaintiffs file and serve any application for leave to file…

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.

Keep reading for free

Create a free CaseChat account to read Tassal Ltd v Russfal Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] TASSC 92
Decision Date: 23 September 2005

CaseChat Overview and Summary

Tassal Ltd brought proceedings against Russfal Pty Ltd in the Supreme Court of Tasmania, alleging that Russfal had made claims against Tassal in bad faith and that those claims were untenable. The case revolved around the interpretation and application of the Supreme Court rules concerning amendments to a statement of claim, specifically whether the claims made by Russfal were made with bad faith and whether they were untenable.

The primary legal issue was whether the amendment of the statement of claim by Russfal constituted an abuse of process under the Supreme Court rules. Additionally, the court had to determine whether the claims made by Russfal were made in bad faith and whether they were without merit. The court needed to assess the intentions behind Russfal's amendments and whether those amendments were designed to delay or frustrate the proceedings.

The court held that the amendment of the statement of claim by Russfal did not amount to an abuse of process. It found that the claims made by Russfal, although amended, were not made in bad faith and were not untenable. The court reasoned that the amendments were not intended to delay or frustrate the proceedings and that Russfal had a legitimate basis for their claims. The court concluded that Tassal had not demonstrated that the amendments were made with bad faith or that the claims were without merit. The court therefore dismissed Tassal's application for an order to strike out the amended claims.

Orders