Federal Court of Australia
Federal Court of Australia
Sydney Subdivision Pty Ltd (in liq) v Chow [2023] FCA 8 File number: NSD 309 of 2020
Judgment of: COLVIN J
Date of judgment: 13 January 2023
Catchwords: PRACTICE AND PROCEDURE - application to amend statement of claim - where statement of claim alleges respondents breached fiduciary and directors duties by entering into a sham loan arrangement - where proposed amendment alleges a different and additional sham loan arrangement - consideration of the 'relation back' rule and Weldon v Neal (1887) 19 QBD 394 - consideration of McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211 - whether proposed claim may be added by way of amendment to a pleading - whether proposed claim is a new claim - whether proposed claim arises from the same facts as existing claim - whether proposed claim is clearly out of time - whether proposed claim has merit - whether delay in seeking amendment is explained - application dismissed - leave given to the applicants to make a further application to amend statement of claim and originating process
Legislation: Corporations Act 2001 (Cth) s 1317K Federal Court of Australia Act 1976 (Cth) ss 37M, 52, 59 Law and Justice Legislation Amendment Act 1994 (Cth) s 44 Federal Court (Corporations) Rules 2000 (Cth) r 1.3 Federal Court Rules 2001 (Cth) rr 8.01, 8.03, 8.05, 8.21, 8.22, 8.23, 16.51, 16.53
Cases cited: ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235 Agtrack (NT) Pty Ltd t/as Spring Air v Hatfield [2003] VSCA 6; (2003) 7 VR 63 Agtrack (NT) Ptd Ltd t/as Spring Air v Hatfield [2005] HCA 38; (2005) 223 CLR 251 Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 2) [2020] FCA 863 Baldry v Jackson [1976] 2 NSWLR 415 BCI Finances Pty Limited (in liq) v Binetter (No 4) [2016] FCA 1351 Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341 Bryant (Liquidator) v L.V. Dohnt & Co Pty Ltd, in the Matter of Gunns Limited (In Liq) (Receivers and Managers Appointed) [2018] FCA 238 Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322 Camilleri v The Trust Company (Nominees) Limited [2015] FCA 1138 Captiv8 Pty Limited (in liq) v Bodger [2018] FCA 1801 Ethicon Sàrl v Gill [2018] FCAFC 137; (2018) 264 FCR 394 Gloucester Shire Council v Fitch Ratings, Inc (No 2) [2017] FCA 248 Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) [2020] FCA 1824 Hewitt v Henderson [2006] WASCA 233 McGrath v HNSW Pty Ltd [2014] FCA 165; (2014) 219 FCR 489 McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211 Morgan v Banning (1999) 20 WAR 474 Rodgers v Commissioner of Taxation (1998) 88 FCR 61 Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230 Voxson Pty Ltd v Telstra Corporation Limited (No 7) [2017] FCA 267 Wardley Australia Limited v State of Western Australia (1992) 175 CLR 514 Weldon v Neal (1887) 19 QBD 394
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