PFD Food Services Pty Ltd v NAFDA Pty Ltd [2003] FCA 1392

FEDERAL COURT OF AUSTRALIA

PFD Food Services Pty Ltd v NAFDA Pty Ltd [2003] FCA 1392 PFD FOOD SERVICES PTY LTD (ACN 006 972 381) & ORS v NAFDA PTY LTD (ACN 002 953 942) V 763 of 2002 RYAN J 9 DECEMBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 763 of 2002

BETWEEN: PFD FOOD SERVICES PTY LTD (ACN 006 972 381) & ORS (in accordance with annexed Schedule)

Applicants

AND: NAFDA PTY LTD (ACN 002 953 942)

Respondent

JUDGE: RYAN J

DATE OF ORDER: 9 DECEMBER 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The applicants have leave by 9 February 2004 to amend their statement of claim in such manner as they may be advised in light of the reasons for judgment published this day. 2. The amended motion on notice dated 28 March 2003 be adjourned to 20 February 2004. 3. The applicants pay the respondent's costs thrown away as a result of the amendment pursuant to leave granted by paragraph 1 of this Order. 4. The costs of all parties of the hearing on 25 August 2003 be reserved. 5. Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other party. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 763 of 2002

BETWEEN: PFD FOOD SERVICES PTY LTD (ACN 006 972 381) & ORS (in accordance with annexed Schedule)

Applicants

AND: NAFDA PTY LTD (ACN 002 953 942)

Respondent

JUDGE: RYAN J

DATE: 9 DECEMBER 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Background 1 On 6 November 2002, the applicants filed a statement of claim alleging, relevantly, that the respondent, NAFDA Pty Ltd ("NAFDA"), had engaged in misleading and deceptive conduct in contravention of the Trade Practices Act 1975 (Cth) ("the Act") and had been in breach of fiduciary duties owed to the applicants. The respondent by a notice of motion dated 11 December 2002 sought to dismiss or strike out the proceedings under O 20 r 2. 2 On 7 July 2003, I made an order that the applicants have leave "to amend their statement of claim in such manner as they may be advised in light of my reasons for judgment published on this day". Those reasons are to be found in PFD Food Services Pty Ltd v NAFDA Pty Ltd [2003] FCA 682 ("PFD"). On 23 July 2003, the applicants filed an amended statement of claim. The extent of the amendments, and their adequacy, will be discussed further below. 3 The respondent subsequently raised a number of objections to the statement of claim as amended pursuant to the leave granted on 7 July 2003. I shall deal separately and in order with each of those further objections.