Idoport Pty Ltd & Anor v National Australia Bank Ltd & Ors [7] [2000] NSWSC 599

New South Wales Supreme Court

CITATION : Idoport Pty Ltd & Anor v National Australia Bank Ltd & Ors [7] [2000] NSWSC 599 FILE NUMBER(S) : SC 50113/98 HEARING DATE(S) : 18 May, 1, 13, 25, 28 June 2000 JUDGMENT DATE : 30 June 2000

PARTIES : Idoport Pty Limited & Anor (Plaintiffs) National Australia Bank Limited & Ors (Defendants) JUDGMENT OF : Einstein J

COUNSEL : JJ Garnsey QC, RC Titterton (Plaintiff) RM Smith SC (Defendants) SOLICITORS : Withnell Hetherington (Plaintiffs) Freehil Hollingdate & Page (Defendants) CATCHWORDS : Practice and Procedure - Application to strike out sections of defence to first cross-claim - Second cross-claim - Necessity to gain leave to file second cross-claim - When plaintiff can further plead a cross-claim against a defendant - Matters appropriately pleaded as cross-claim - Matters appropriately included as amendment to statement of claim - Second cross-claim not necessarily inappropriately pleaded. - Practice and Procedure - Limitation periods - Applicability of limitation period to second cross-claim - Approach of Court to submission that leave to file second cross-claim should be refused because it is out of time - Leave not refused on grounds that second cross-claim is out of time. - Practice and Procedure - Pleadings and particulars - Specificity of pleading - Necessary particulars for a claim under s75B of the Trade Practices Act 1974 - Need to plead knowledge of essential matters under s75B - Need to particularise provenance of knowledge with specificity - Where effect of allegation of knowledge comes close to allegation of fraudulent intention particulars of knowledge may often be necessary - Particulars not sufficient. Fair Trading Act 1987 (NSW) Fair Trading Act 1985 (Vic) LEGISLATION CITED : Limitation Act 1969 Supreme Court Act 1970 (NSW) Trade Practices Act 1974 (Cth) Aurel Forras Pty Ltd v Graham Karp Developments Pty Ltd [1975] VR 202 Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 Baldry v Jackson [1976] 2 NSWLR 415 Burgess v Beethoven Electric Equipment Ltd [1943] 1 KB 96 Chan Cuong SU T/A Ausviet Travel v Direct Flights International Pty Ltd (No 2) (1999) ATPR 41, 677 Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 323 Henriksens Rederi A/S v THZ Romilplex (The Brede) [1974] 2 QB 233 CASES CITED : Hornsby Building Information Centre Pty Ltd v Sydney Information Centre (1978) 140 CLR 216 Lyons v Kern Konstructions Pty Ltd (1983) 70 FLR 135 McDonnell & East Ltd v McGregor (1936) 56 CLR 50; R v Associated Northern Collieries (1910) 22 CLR 738 Rajski v Bainton (1990) 22 NSWLR 125 Renton Gibbs Ltd v Neville & Co [1900] 2 QB 181 Vagg v ANZ Banking Group Pty Ltd (1992) 38 NSWLR 160 Wardley v Western Australia (1982) 175 CLR 514 Yorke v Lucas (1985) 158 CLR 661 DECISION : Notice of Motion seeking to strike out sections of amended defence to first cross-claim to be dismissed. Leave granted to file proposed second cross-claim excluding s 75B count.