The Bell Group Ltd (In Liq) v Westpac Banking Corporation

Case

[2001] WASC 315 (S)

19 DECEMBER 2001

No judgment structure available for this case.

THE BELL GROUP LTD (In Liq) & ORS -v- WESTPAC BANKING CORPORATION & ORS [2001] WASC 315 (S)



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2001] WASC 315 (S)
Case No:CIV:1464/200022 NOVEMBER 2001
Coram:OWEN J19/12/01
19/12/01
14Judgment Part:1 of 1
Result: Leave to amend granted
B
PDF Version
Parties:THE BELL GROUP LTD (In Liquidation) (ACN 008 666 993)
THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR DOLFINNE PTY LTD (In Liquidation)
THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR INDUSTRIAL SECURITIES PTY LTD
THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR MARANOA TRANSPORT PTY LTD
THE BELL GROUP LTD (In Liquidation) AS TRUSTEE FOR NEOMA INVESTMENTS PTY LTD
BELL GROUP FINANCE (In Liquidation) (RECEIVER AND MANAGER APPOINTED)
BELL GROUP (UK) HOLDINGS LTD (In Liquidation) (IN ADMINISTRATIVE RECEIVERSHIP)
BELL PUBLISHING GROUP PTY LTD (In Liquidation)
BELL GROUP NV (In Liquidation)
AMBASSADOR NOMINEES PTY LTD (In Liquidation) and OTHERS
GEOFFREY FRANK TOTTERDELL AS LIQUIDATOR OF FIRST PLAINTIFF AND OF FIRST, SECOND, THIRD, FIFTH, NINTH, TENTH, ELEVENTH, THIRTEENTH, FOURTEENTH, SIXTEENTH, SEVENTEENTH AND NINETEENTH NAMED SEVENTH PLAINTIFFS
ANTONY LESLIE JOHN WOODINGS AS LIQUIDATOR OF THE THIRD PLAINTIFF, FIFTH PLAINTIFF AND OF THE FOURTH, SIXTH, SEVENTH, EIGHTH, TWELFTH, FIFTEENTH, EIGHTEENTH NAMED SEVENTH PLAINTIFFS
GARRY JOHN TREVOR AS LIQUIDATOR OF THE SIXTH PLAINTIFF
WESTPAC BANKING CORPORATION (ACN 007 457 141)
SOCIETE GENERALE AUSTRALIA LTD
NATIONAL AUSTRALIA BANK LTD
HONGKONGBANK OF AUSTRALIA LTD
STANDARD CHARTERED BANK AUSTRALIA LTD
COMMONWEALTH BANK OF AUSTRALIA
LLOYDS BANK PLC
BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA
BANK FUR GEMEINWIRTSCHAFT AG
THE GOVERNOR AND COMPANYOF THE BANK OF SCOTLAND
CAISSE NATIONALE DE CREDIT AGRICOLE
CREDITANSTALT-BANKVEREIN
CREDIT LYONNAIS
DRESDNER BANK AG
KREDIETBANK NV
SKOPBANK
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
THE GULF BANK KSC
GENTRA LTD (FORMERLY ROYAL TRUST BANK)
BANQUE INDOSEUZ
EQUITY TRUST (CURACAO) NV
COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937)
SOCIETE GENERALE AUSTRALIA LTD (ACN 002 093 021)
STANDARD CHARTERED  BANK AUSTRALIA LTD
WESTPAC BANKING CORPORATION (ARBN 007 457 141)
HONGKONGBANK OF AUSTRALIA LTD (ACN 006 434 162)
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
CREDITANSTALT-BANK VEREIN
CAISEE NATIONALE DE CREDIT AGRICOLE
GULF BANK KSC
DG BANK DEUTSCHE GENOSSENSCHAFTBANK
THE LAW DEBENTURE TRUST CORPORATION PLC
THE BELL GROUP LTD (ACN 008 666 993)
GEOFFREY FRANK TOTTERDELL
BELL GROUP FINANCE PTY LTD (In Liquidation) (RECEIVER AND MANAGER APPOINTED) (ACN 009 165 182)
ANTONY LESLIE JOHN WOODINGS
STATE GOVERNMENT INSURANCE COMMISSION OF WESTERN AUSTRALIA
AUSTRALIAN CONSOLIDATED INVESTMENTS LTD (ACN 008 670 924)
GODINE DEVELOPMENTS PTY LTD (ACN 009 237 307)
BELL RESOURCES DEVELOPMENTS PTY LTD (ACN 009 152 569)
W.A. GLENDINNING & ASSOCIATES PTY LTD (ACN 008 762 721)
W.U. INVESTMENTS PTY LTD
EXPECTATION PTY LTD
COMMONWEALTH OF AUSTRALIA
WESTPAC BANKING CORPORATION

Catchwords:

Practice and procedure
Pleadings
Amendment to statement of claim
Turns on own facts

Legislation:

Nil

Case References:

The Bell Group Limited (In Liq) & Ors v Westpac Banking Corporation & Ors [2001] WASC 315
Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279
BCCI v Akindele [2001] Ch 437
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Commonwealth Bank of Australia v Ridout Nominees Pty Ltd [2000] WASC 37
Kinsela v Russell Kinsela Pty Ltd (In Liq) (1986) 4 NSWLR 722
Koorootang Nominees Pty Ltd v Australian and New Zealand Banking Group Ltd [1998] 3 VR 16
Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd [2001] 2 WLR 170
Nicholson v Permakraft (NZ) Ltd (In Liq) (1985) 3 ACLC 453
Pyramid Building Society (In Liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188
Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378
Spies v R (2000) 201 CLR 603
Sycotex Ltd v Baseler (1994) 122 ALR 531

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CHAMBERS
CITATION : THE BELL GROUP LTD (In Liq) & ORS -v- WESTPAC BANKING CORPORATION & ORS [2001] WASC 315 (S) CORAM : OWEN J HEARD : 22 NOVEMBER 2001 DELIVERED : 19 DECEMBER 2001 SUPPLEMENTARY
DECISION : 19 DECEMBER 2001 FILE NO/S : CIV 1464 of 2000 BETWEEN : THE BELL GROUP LTD (In Liq) (ACN 008 666 993)
    First Plaintiff

    THE BELL GROUP LTD (In Liq) AS TRUSTEE FOR DOLFINNE PTY LTD (In Liq)
    THE BELL GROUP LTD (In Liq) AS TRUSTEE FOR INDUSTRIAL SECURITIES PTY LTD
    THE BELL GROUP LTD (In Liq) AS TRUSTEE FOR MARANOA TRANSPORT PTY LTD
    THE BELL GROUP LTD (In Liq) AS TRUSTEE FOR NEOMA INVESTMENTS PTY LTD
    Second Plaintiffs

    BELL GROUP FINANCE (In Liq) (RECEIVER AND MANAGER APPOINTED)
    Third Plaintiff

    BELL GROUP (UK) HOLDINGS LTD (In Liq) (IN ADMINISTRATIVE RECEIVERSHIP)
    Fourth Plaintiff

    BELL PUBLISHING GROUP PTY LTD (In Liq)
    Fifth Plaintiff

(Page 2)

    BELL GROUP NV (In Liq)
    Sixth Plaintiff

    AMBASSADOR NOMINEES PTY LTD (In Liq) and OTHERS
    Seventh Plaintiffs

    GEOFFREY FRANK TOTTERDELL AS LIQUIDATOR OF FIRST PLAINTIFF AND OF FIRST, SECOND, THIRD, FIFTH, NINTH, TENTH, ELEVENTH, THIRTEENTH, FOURTEENTH, SIXTEENTH, SEVENTEENTH AND NINETEENTH NAMED SEVENTH PLAINTIFFS
    Eighth Plaintiff

    ANTONY LESLIE JOHN WOODINGS AS LIQUIDATOR OF THE THIRD PLAINTIFF, FIFTH PLAINTIFF AND OF THE FOURTH, SIXTH, SEVENTH, EIGHTH, TWELFTH, FIFTEENTH, EIGHTEENTH NAMED SEVENTH PLAINTIFFS
    Ninth Plaintiff

    GARRY JOHN TREVOR AS LIQUIDATOR OF THE SIXTH PLAINTIFF
    Tenth Plaintiff

    AND

    WESTPAC BANKING CORPORATION (ACN 007 457 141)
    First Defendant

    SOCIETE GENERALE AUSTRALIA LTD
    NATIONAL AUSTRALIA BANK LTD
    HONGKONGBANK OF AUSTRALIA LTD
    STANDARD CHARTERED BANK AUSTRALIA LTD
    COMMONWEALTH BANK OF AUSTRALIA
    Second Defendants



(Page 3)
    LLOYDS BANK PLC
    BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA
    BANK FUR GEMEINWIRTSCHAFT AG
    THE GOVERNOR AND COMPANYOF THE BANK OF SCOTLAND
    CAISSE NATIONALE DE CREDIT AGRICOLE
    CREDITANSTALT-BANKVEREIN
    CREDIT LYONNAIS
    DRESDNER BANK AG
    KREDIETBANK NV
    SKOPBANK
    DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
    THE GULF BANK KSC
    GENTRA LTD (FORMERLY ROYAL TRUST BANK)
    BANQUE INDOSEUZ
    Third Defendants

    EQUITY TRUST (CURACAO) NV
    Fourth Defendant
FILE NO/S : CIV 2061 of 1996 BETWEEN : COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
    First Plaintiff

    NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937)
    Second Plaintiff

    SOCIETE GENERALE AUSTRALIA LTD (ACN 002 093 021)
    Third Plaintiff

    STANDARD CHARTERED BANK AUSTRALIA LTD
    Fourth Plaintiff


(Page 4)
    WESTPAC BANKING CORPORATION (ARBN 007 457 141)
    Fifth Plaintiff

    HONGKONGBANK OF AUSTRALIA LTD (ACN 006 434 162)
    Sixth Plaintiff

    BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA
    BANK FUR GEMEINWIRTSCHAFT AG
    THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
    CREDITANSTALT-BANK VEREIN
    CREDIT LYONNAIS
    DRESDNER BANK AG
    BANQUE INDOSEUZ
    Seventh Plaintiffs

    LLOYDS BANK PLC
    CAISEE NATIONALE DE CREDIT AGRICOLE
    GENTRA LTD (FORMERLY ROYAL TRUST BANK)
    KREDIETBANK NV
    GULF BANK KSC
    DG BANK DEUTSCHE GENOSSENSCHAFTBANK
    Eighth Plaintiffs

    AND


    THE LAW DEBENTURE TRUST CORPORATION PLC
    First Defendant

    THE BELL GROUP LTD (ACN 008 666 993)
    Second Defendant

    GEOFFREY FRANK TOTTERDELL
    Third Defendant


(Page 5)
    BELL GROUP FINANCE PTY LTD (In Liq) (RECEIVER AND MANAGER APPOINTED) (ACN 009 165 182)
    Fourth Defendant

    ANTONY LESLIE JOHN WOODINGS
    Fifth Defendant

    STATE GOVERNMENT INSURANCE COMMISSION OF WESTERN AUSTRALIA
    Sixth Defendant

    (BY ORIGINAL ACTION)

    THE LAW DEBENTURE TRUST CORPORATION PLC
    STATE GOVERNMENT INSURANCE COMMISSION OF WESTERN AUSTRALIA
    Plaintiffs

    AND

    AUSTRALIAN CONSOLIDATED INVESTMENTS LTD (ACN 008 670 924)
    GODINE DEVELOPMENTS PTY LTD (ACN 009 237 307)
    BELL RESOURCES DEVELOPMENTS PTY LTD (ACN 009 152 569)
    First Defendants

    LLOYDS BANK PLC
    Second Defendant

    W A GLENDINNING & ASSOCIATES PTY LTD (ACN 008 762 721)
    W U INVESTMENTS PTY LTD
    EXPECTATION PTY LTD
    Third Defendants

    COMMONWEALTH OF AUSTRALIA
    Fourth Defendant


(Page 6)
    WESTPAC BANKING CORPORATION
    Fifth Defendant

    (BY COUNTERCLAIM)



Catchwords:

Practice and procedure - Pleadings - Amendment to statement of claim - Turns on own facts




Legislation:

Nil




Result:

Leave to amend granted




Category: B


Representation:

CIV 1464 of 2000


Counsel:


    First Plaintiff : Mr R M Robson QC & Mr J T Svehla
    Second Plaintiffs : Mr R M Robson QC & Mr J T Svehla
    Third Plaintiff : Mr R M Robson QC & Mr J T Svehla
    Fourth Plaintiff : Mr R M Robson QC & Mr J T Svehla
    Fifth Plaintiff : Mr R M Robson QC & Mr J T Svehla
    Sixth Plaintiff : Mr R M Robson QC & Mr J T Svehla
    Seventh Plaintiffs : Mr R M Robson QC & Mr J T Svehla
    Eighth Plaintiff : Mr R M Robson QC & Mr J T Svehla
    Ninth Plaintiff : Mr R M Robson QC & Mr J T Svehla
    Tenth Plaintiff : Mr R M Robson QC & Mr J T Svehla


(Page 7)
    First Defendant : Mr T M Jucovic QC, Mr J L B Allsop QC &
    Mr A V McCarthy
    Second Defendants : Mr T M Jucovic QC, Mr J L B Allsop QC &
    Mr A V McCarthy
    Third Defendants : Mr T M Jucovic QC, Mr J L B Allsop QC &
    Mr A V McCarthy
    Fourth Defendant : No appearance


Solicitors:

    First Plaintiff : Blake Dawson Waldron
    Second Plaintiffs : Blake Dawson Waldron
    Third Plaintiff : Blake Dawson Waldron
    Fourth Plaintiff : Blake Dawson Waldron
    Fifth Plaintiff : Blake Dawson Waldron
    Sixth Plaintiff : Blake Dawson Waldron
    Seventh Plaintiffs : Blake Dawson Waldron
    Eighth Plaintiff : Blake Dawson Waldron
    Ninth Plaintiff : Blake Dawson Waldron
    Tenth Plaintiff : Blake Dawson Waldron
    First Defendant : Freehills
    Second Defendants : Freehills
    Third Defendants : Freehills
    Fourth Defendant : No appearance

CIV 2061 of 1996


Counsel:


    First Plaintiff : Mr T M Jucovic QC, Mr J L B Allsop QC &
    Mr A V McCarthy
    Second Plaintiff : Mr T M Jucovic QC, Mr J L B Allsop QC &
    Mr A V McCarthy
    Third Plaintiff : Mr T M Jucovic QC, Mr J L B Allsop QC &
    Mr A V McCarthy
    Fourth Plaintiff : Mr T M Jucovic QC, Mr J L B Allsop QC &
    Mr A V McCarthy
    Fifth Plaintiff : Mr T M Jucovic QC, Mr J L B Allsop QC &
    Mr A V McCarthy
    Sixth Plaintiff : Mr T M Jucovic QC, Mr J L B Allsop QC &
    Mr A V McCarthy
    Seventh Plaintiffs : Mr T M Jucovic QC, Mr J L B Allsop QC &
    Mr A V McCarthy

(Page 8)
    Eighth Plaintiffs : Mr T M Jucovic QC, Mr J L B Allsop QC &
    Mr A V McCarthy
    First Defendant : Mr A R Beech & Ms A Hamersley
    Second Defendant : Mr R M Robson QC & Mr J T Svehla
    Third Defendant : Mr R M Robson QC & Mr J T Svehla
    Fourth Defendant : Mr R M Robson QC & Mr J T Svehla
    Fifth Defendant : Mr R M Robson QC & Mr J T Svehla
    Sixth Defendant : Mr A R Beech & Ms A Hamersley


Solicitors:

    First Plaintiff : Freehills
    Second Plaintiff : Freehills
    Third Plaintiff : Freehills
    Fourth Plaintiff : Freehills
    Fifth Plaintiff : Freehills
    Sixth Plaintiff : Freehills
    Seventh Plaintiffs : Freehills
    Eighth Plaintiffs : Freehills
    First Defendant : Edgar & Co
    Second Defendant : Blake Dawson Waldron
    Third Defendant : Blake Dawson Waldron
    Fourth Defendant : Blake Dawson Waldron
    Fifth Defendant : Blake Dawson Waldron
    Sixth Defendant : Edgar & Co


Case(s) referred to in judgment(s):

The Bell Group Limited (In Liq) & Ors v Westpac Banking Corporation & Ors [2001] WASC 315

Case(s) also cited:



Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279
BCCI v Akindele [2001] Ch 437
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Commonwealth Bank of Australia v Ridout Nominees Pty Ltd [2000] WASC 37
Kinsela v Russell Kinsela Pty Ltd (In Liq) (1986) 4 NSWLR 722
Koorootang Nominees Pty Ltd v Australian and New Zealand Banking Group Ltd [1998] 3 VR 16


(Page 9)

Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd [2001] 2 WLR 170
Nicholson v Permakraft (NZ) Ltd (In Liq) (1985) 3 ACLC 453
Pyramid Building Society (In Liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188
Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378
Spies v R (2000) 201 CLR 603
Sycotex Ltd v Baseler (1994) 122 ALR 531

(Page 10)

1 OWEN J: The reasons in The Bell Group Limited (In Liq) & Ors v Westpac Banking Corporation & Ors [2001] WASC 315 ("the earlier reasons") disclose my general approach to the application by the plaintiffs for leave to amend the writ and the statement of claim. At a directions hearing on 22 November 2001 I requested the plaintiffs to bring in a fresh minute of proposed amended statement of claim:

    (a) incorporating changes that counsel had indicated the plaintiffs were prepared to make to accommodate some of the objections raised by the defendants; and

    (b) to bring the pleading in line with the earlier reasons.


2 I made this request so that I could satisfy myself that the Eighth Amended Statement of Claim (as the pleading will become) would be in accord with what I had intended to convey in the reasons. I also wished to give the defendants an opportunity to consider the final form of the proposed pleading.

3 The plaintiffs have filed a document entitled "Minute of Plaintiffs' Eighth Amended Statement of Claim" dated 7 December 2001 ("the Minute"). The document was accompanied by two lever arch files constituting the particulars to the statement of claim. The defendants filed a memorandum dated 14 December 2001 in which they raised four matters which were of concern to them. The plaintiffs filed a memorandum dated 7 December 2001 in which they responded to the defendants' concerns.

4 I have considered the Minute, the particulars and the memoranda. These reasons, which are supplementary to those contained in [2001] WASC 315, deal with the four matters of concern raised by the defendants. My reading of the materials did not alert me to other areas in which the Minute is not consistent with the earlier reasons. These reasons constitute the finalisation of the application for leave to amend the writ and the statement of claim.




The State of Mind of the Directors

5 I made it clear in the earlier reasons and at the November 2001 directions hearing that I understood the plaintiffs not to be alleging conscious wrongdoing on the part of the directors. In my view pars 39A, 39C and 39D and the particulars accord with that understanding.


(Page 11)

6 One of the defendants' concerns is the reference in the particulars to a "lack of a genuine belief" in a state of affairs. My recollection is that the Seventh Amended Statement of Claim (a document that I do not have available at the moment) contained similar references. As I understand it there was no suggestion that it imported an element of conscious wrongdoing into that version of the pleading. I see no reason why the Minute should be differently interpreted.

7 The problem is exemplified by the allegation that the directors exercised powers for an improper purpose. This can arise in a number of ways. For example, an objector may allege the power was exercised for purpose "A" (which on any view of it is improper) while the directors may say that it was done for purpose "B", a totally legitimate purpose. A different argument may arise if the claimant and the directors are of one mind as to what the purpose was but they part company on the question whether it was improper. In that case the purpose may be found to be improper, in which case the directors may be liable. But this does not mean that they have pursued an improper purpose knowing the purpose to be improper. That would involve conscious wrongdoing. There may be other possibilities and combinations.

8 All that need be said is that I interpret the pleading as not involving an allegation of conscious wrongdoing in the sense that I have outlined. I will hold the plaintiffs to that interpretation.

9 In my view pars 39A, 39C, 39D of the Minute and the accompanying particulars can stand.




The Equitable Fraud Claim

10 The equitable fraud claim is primarily to be found in pars 65M and 65MA. It is advanced on alternative bases. First, that nominated conduct is a deceit and imposition on Bell Participants and their creditors. This needs no further comment. Secondly, the Scheme and the Transactions constituted an inequitable and unconscientious bargain. This is contentious.

11 The gravamen of the second basis for the unconscionability claim is to be found in the particulars to par 65MA. I have considered carefully the matters raised in pars 22 to 29 of the defendants' memorandum of 14 December 2001. I acknowledge that the pleading is not perfect, although I am not sure how, in relation to pleadings, perfection can ever be assessed. My concern in the earlier reasons was that it was unclear



(Page 12)
    exactly what the plaintiffs were saying about the myriad of material facts which were incorporated by reference and which, on the plaintiffs' case, rendered the bargain inequitable. In my view, that problem has now been cured. The defendants are made aware how it is said various circumstances affected individual or nominated companies.

12 In my view enough is disclosed in the particulars in order for the Banks to know the case they have to meet. I am also satisfied on the matters raised in pars 28 to 30 of the plaintiffs' memorandum, that the proposed plea avoids serious embarrassment or oppression to the defendants. Whether the matters contained in the particulars, if made out, are sufficient to ground a finding that the bargain was inequitable ought to be left for trial.


The Limitation Issues

13 I thought I had made my position on the limitation issues relatively clear in the earlier reasons. I propose to stand over for consideration by the trial Judge all issues relating to limitation defences.

14 These problems can, and probably will, arise in three ways. First, whether some or all of the matters raised in the Eighth Amended Statement of Claim constitute new or fresh causes of action. Secondly, if so, what is the applicable limitation period? In relation to equitable claims, this may involve arguments about analogous causes of action at law. Thirdly, if there is a new or fresh cause of action does it arise out of the same or substantially the same factual matrix as previously pleaded?

15 As I said in the earlier reasons, all of these matters are best left to trial. I have considered carefully the material in pars 30 and 31 of the defendants' memorandum and pars 31 to 34 of the plaintiffs' response. I am afraid I do not fully understand the difference between the approaches advocated by the respective parties. In any event par 31 of the defendants' memorandum accurately reflects what I had in mind as the appropriate order.




Wilful Blindness

16 The defendants are concerned about the particulars to par 59TA(b). That paragraph pleads:



(Page 13)
    "Prior to the February meetings, with the knowledge, belief and suspicion which they held … , the Banks… refrained from seeking any or any adequate information about any schemes to restructure the financial position of the Bell Participants and the position of those companies' creditors, future creditors and shareholders in any such scheme."

17 Particular (b)(i) sets out five areas in which, according to the plaintiffs, the defendants abstained from making inquiries. Particular (b)(ii) sets out what the plaintiffs say inquiries, had they been made, would have revealed. The third particular alleges that the inquiries would have been made by "honest and reasonable persons in the position of" the defendants. In the fourth particular the plaintiffs give notice they will seek to have an inference drawn that the defendants abstained from inquiry because they believed or suspected (not that they knew) that the position was as set out in particular (b)(ii). Finally, there are set out two identified memoranda and an alleged banking practice (known to one of the defendants) as matters on which the plaintiffs wish to rely.

18 I am attracted to the argument raised by the plaintiffs that:


    (a) the particulars do not represent a change in the case argued on the amendment application;

    (b) they narrow the case by limiting the matters in relation to which it is said the defendants abstained from making inquiry; and

    (c) at least to some extent the matters cover what is already in issue in par 62AA of the defence.


19 I do not believe that the particulars raise issues that are not in accord with par 59TA(b) of the Minute or that are not within the confines of the arguments raised during the hearing of the amendment application. Nor do I think they are embarrassing or otherwise defective in form.


Conclusion

20 There will be leave to amend in accordance with the Minute and the particulars as contained in the two lever arch files. The order should be extracted accordingly but it will speak from today. It should provide for the limitation issues to be deferred to the trial Judge.

21 The programme for dealing with the outstanding interlocutory applications was set at the directions hearing on 22 November 2001.



(Page 14)
    Once that programme has been completed the arrangements for management of the action can be reviewed.
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Cases Citing This Decision

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Cases Cited

8

Statutory Material Cited

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Turner v Windever [2003] NSWSC 1147