PICCARDI v CALDEKIA PTY LIMITED [1996] NSWCA 428

PICCARDI v CALDEKIA PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and CoLe JA 23 September 1996

[1996] NSWCA 428

ALLEGATION of conspiracy to injure — knowledge of illegal method or purpose maybe inferred from facts — fraud allegation struck out as not particularised — Rajski v Bainton (1990) 22 NSWLR 125 referred to.

Cole JA. This is an appeal from a decision of Brownie J upholding a decision of Master Macready refusing leave to file an amended statement of claim alleging conspiracy in circumstances where the amended statement of claim did not particularise asserted knowledge in the defendants that they knew their acts were 'wrong and unlawful', nor was it accompanied by an affidavit setting forth evidence which might establish that knowledge. Brownie J said:

In any event it seems to me that the learned Master was correct and that the judgment of the Court of Appeal in Rajski's case means that one may not lawfully plead a conspiracy such as the conspiracy sought to be pleaded here, without either giving particulars of the knowledge in question, that is, in this case knowledge that what was to be done in the form of paying out money, was improperly done. It seems to me that Rajski's case establishes that one may not simply allege that the inference is available or that it is a strong inference. The pleader must give particulars of the supposed knowledge of the impropriety."Before reaching the conclusion which I have quoted, his Honour took a passage from the judgment of Mahoney JA in Rajski v Bainton' and transposed it to the circumstances of this case. His Honour said:

Transposing those notions to this case, at the time that the supposed conspiracy was said to have come in to existence, the supposed conspirators might have misunderstood the law, or the facts, or have been wrong-headed. They might have believed that what they were doing was correct. It may be that the supposed deficiencies now pointed to by the plaintiffs only became apparent to them later, or had not become apparent at all. It may be that the proposed conspirators had failed properly to analyse the transaction at the time it was brought about. They may have been inadequately advised.