Fencott, B.E. & Assoc. Pty Ltd v Eretta Pty Ltd & Anor [1986] FCA 370

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NOT CONSIDERED SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY No. 83 of 1986

GENERAL DIVISION

BETWEEN:

BRYAN E. FENCOTT AND ASSOCIATES PTY LIMITED

Applicant AND: ERETTA PTY LIMITED REL ve First Respondent = 2 SEP 19 AND: FPEDEMAL COURT OF AUSTRALIA JOHN COOKE

PRINCIPAL

Second Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

This application relates to three groups of amendment sought to be made to the Statement of Claim. The first concerns the basis of the claim against the first respondent and 1s not opposed. The second concerns a proposed claim under s.52 of the Trade Practices Act 1974 against the companies sought to be joined as third, fourth and fifth respondents by amendment of the Statement of Claim. It is conceded that that claim is already barred by the limitation provision in the Trade Practices Act 1974, s.82(2), and the amendment is opposed. After some argument, counsel for the applicant indicated that he did not any

longer press this amendment.

Ne

The third group of amendments is sought to raise a claim that the proposed third, fourth and fifth respondents were, knowingly or with constructive knowledge, parties to breaches of fiduciary duty which are alleged against the first respondent, and are themselves liable as fiduciaries. It is not suggested that I should refuse this group of amendments as clearly outside the accrued jurisdiction of the Court, nor do I think I should refuse them on that ground. What was argued was that the drafting was unnecessarily confusing and the actual claims made were unclear. After some argument, I stood the matter over to today to enable a re-draft of the proposed amended Statement of Claim to be submitted, clarifying the amendments in the last

category and eliminating those in the second.