Pramoko, T.A. v Lee, S.S.L. & Anor [1995] FCA 40

CATCHWORDS PRACTICE AND PROCEDURE - amendment to statement of claim - misleading or deceptive conduct - appropriate measure of loss or damage. Fair Trading Act 1987 (W.A.) Trade Practices Act 1974 (Cth) s.82 David C. Price, "Opening Gates: The Measure of Damages under the Trade Practices Act", C.C.L.J. Vol. 1 (1994) Accounting Systems 2000 (Developments) Pty. Ltd. v. C.C.H. Australia Ltd. (1993) 42 F.C.R. 470 Elna Australia Pty. Ltd. v. International Computers (Australia) Pty. Ltd. (1987) 16 F.C.R. 410 Wardley Australia Ltd. v. Western Australia (1992) 175 C.L.R. 514 TANTO ADI PRAMOKO V. SALIM SIOE LIM LEE AND KOMEMO PTY. LTD. WAG98 OF 1991 LEE J. PERTH 9 FEBRUARY 1995

IN THE FEDERAL COURT) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. WAG 98 OF 1991 B E T W E E N: TANTO ADI PRAMOKO Applicant and SALIM SIOE LIM LEE First Respondent and KOMEMO PTY. LTD. Second Respondent MINUTE OF ORDER JUDGE MAKING ORDER: LEE J. DATE OF ORDER: 9 FEBRUARY 1995 WHERE MADE: PERTH THE COURT ORDERS THAT:

1. The applicant have leave to amend the statement of claim in the terms of the minute of proposed sixth amended statement of claim filed 11 August 1994. 2. Costs of the motion be costs in the respondents' cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. WAG 98 OF 1991 B E T W E E N: TANTO ADI PRAMOKO Applicant and SALIM SIOE LIM LEE First Respondent and KOMEMO PTY. LTD. Second Respondent CORAM: LEE J. DATE : 9 FEBRUARY 1995 PLACE: PERTH REASONS FOR JUDGMENT The applicant ("Pramoko") seeks leave to further amend its statement of claim, a pleading that has been amended on five occasions. The respondents ("Lee", and "Komemo Pty. Ltd.") object to the grant of leave in one respect. The respondents contend that the proposed amendment contained in para.40 of the minute of the proposed amended statement of claim seeks to rely upon an impermissible measure of the loss or damage able to be recovered in the proceeding. Pursuant to the statement of claim as it now stands, Pramoko has pleaded that in about October 1987 he and Kokemo Pty. Ltd., as sole shareholders of Nalladeen Pty. Ltd. ("Nalladeen"), caused Nalladeen to enter contracts to purchase parcels of lands in Queensland for an aggregate price of $2.8m. The Directors of Nalladeen were Pramoko and Lee. The land was purchased for the purpose of sub-division, development and resale. Shortly thereafter further shares in Nalladeen were issued to Pramoko, Komemo Pty. Ltd. and to a third party and the company borrowed approximately $3m "to facilitate the development". The statement of claim does not state when or how the contracts to purchase the Queensland land were settled. Pramoko claims that on several separate occasions in 1988 Lee, on his own behalf, or alternatively, on behalf of Komemo Pty. Ltd., made representations to Pramoko with the intention of inducing Pramoko to agree to transfer his shareholding in Nalladeen to the third party. The essence of the representations alleged to have been made was that the Queensland project would not be profitable, represented a substantial risk for Pramoko and would require Pramoko to provide a further $1m by way of capital investment. It is also claimed that Lee stated that Komemo Pty. Ltd. was anxious to "quit the project" and would be able to do so if Pramoko gave control of Nalladeen to the third party by transferring his shareholding in Nalladeen to that party.