KTC v David [2022] FCAFC 60

Federal Court of Australia

KTC v David [2022] FCAFC 60 Appeal from: KTC v David (Summary Dismissal) [2020] FCA 1012

File number: NSD 838 of 2020

Judgment of: WIGNEY, ANASTASSIOU AND JACKSON JJ

Date of judgment: 13 April 2022

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – whether decision of primary judge attended by sufficient doubt to warrant grant of leave – whether substantial injustice would result from a refusal of leave – where interlocutory orders have practical effect of finally determining the rights of a party to proceeding – whether claim involves speculation or conjecture, obviating any purported substantial injustice – leave to appeal granted PRACTICE AND PROCEDURE – application for leave to file and serve proposed further amended statement of claim – where proceeding involves numerous corporate entities and multiple complex commercial transactions – where proceeding raises questions of fact and law in relation to pleading of a dishonest and fraudulent design under the second limb of so-called rule in Barnes v Addy – relevant principles concerning the amendment and striking out of pleadings and summary dismissal – whether primary judge erred in concluding that claim of knowing assistance in dishonest and fraudulent design was not maintainable – appeal dismissed

Legislation: Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth) ss 24(1A), 31A, 31A(2), 37M, 37M(3) Federal Court Rules 2011 (Cth) rr 16.02, 16.02(1), 16.02(1)(b), 16.02(1)(c), 16.02(1)(d), 16.02(2), 16.02(2)(c), 16.02(2)(d), 16.21, 16.21(1)(c), 16.21(1)(e), 16.42, 16.43, 16.51, 16.53, 26.01 Judiciary Act 1903 (Cth) s 39B