Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238

New South Wales Supreme Court

CITATION : Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238

HEARING DATE(S) : 25/11/05

JUDGMENT DATE : 28 November 2005

Equity Division JURISDICTION : Commercial List

JUDGMENT OF : White J

DECISION : See paragraph 44 of judgment.

CATCHWORDS : PRACTICE AND PROCEDURE – Application to amend pleadings – Date from which amendment is to take effect – Whether defendant deprived of a limitations defence – Whether amendment arises from some facts or it is otherwise just to grant leave under s 64 of the Civil Procedure Act.

Trade Practices Act 1974 (Cth) Civil Procedure Act 2005 (NSW) LEGISLATION CITED : Supreme Court Rules 1970 (NSW) Uniform Civil Procedures Rules 2005 (NSW)

Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 Rodgers v Commissioner of Taxation (1998) 88 FCR 61 Brickfield Properties Ltd v Newton (1971) 3 All ER 328 CASES CITED : McGee v Yeomans (1977) 1 NSWLR 273 New Cap Reinsurance Corp v Reaseguros Alianza SA (2004) 186 FLR 175 Ingot Capital Investments Pty Ltd v Macquarie Equity Market Limited (No.3) [2005] NSWSC 255

PARTIES : Sagacious Procurement Ltd v Mayne Group Ltd

FILE NUMBER(S) : SC 50158/02

Plaintiff: M Elliot COUNSEL : Defendant: D Pritchard

Plaintiff: Sagacious Legal Pty Ltd SOLICITORS : Defendant: Freehills

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

WHITE J

Monday, 28 November 2005

50158/02 Sagacious Procurement Ltd v Mayne Group Ltd JUDGMENT 1 HIS HONOUR: This matter was before me late in the afternoon of Friday, 25 November 2005 for the purpose of deciding what orders should be made, principally in relation to the terms upon which the plaintiff should be given leave to file an Amended Summons. 2 The defendant did not oppose the plaintiff having leave to file an Amended Summons. But it contended that an order should be made that the amendments should have effect from the date upon which the Amended Summons was filed. 3 Alternatively, it was submitted that the question as to the date from which the amendments were to take effect should be referred to the trial judge. 4 The Summons was filed on 20 September 2002. In it, the plaintiff claims damages for breach of contract, and for misrepresentations allegedly made between November 1999 and 24 January 2000. It alleges that these misrepresentations induced it to enter into a Heads of Agreement with the defendant on 24 January 2000, and consequently to execute a contract called a "Strategic Alliance Agreement" on 2 July 2000 with the defendant. 5 In its Amended Summons, the plaintiff pleads different representations. It alleges these were made to it in November and December 1999. These representations are alleged to be misleading and deceptive, or likely to mislead and deceive, and to have been made in trade or commerce. 6 The plaintiff alleges that in reliance upon the representations, it entered into the Heads of Agreement on 24 January 2000, and later into the Strategic Alliance Agreement. 7 It claims it suffered damage in that had it not been misled it would, it says, have negotiated different and more favourable terms of the Strategic Alliance Agreement. Alternatively, it claims that the losses it allegedly suffered after entering into the Strategic Alliance Agreement were loss or damage suffered by the defendant's alleged contravention of s 52 of the Trade Practices Act. 8 The claim, as pleaded, raises no issue about the limitation period having expired prior to the amendment being made. It is common ground that the limitation period is six years. See Trade Practices Act s 82(2). 9 The damage the plaintiff pleads it suffered by the alleged misleading and deceptive conduct could not, it appears to me, have occurred prior to its entering into the Strategic Alliance Agreement in July 2000. 10 Hence, the limitation period would not expire until July next year. 11 The defendant submits that it may wish to plead that the plaintiff suffered damage more than six years ago by losing the opportunity to make a different agreement which would have been more profitable, or less unprofitable, than the agreement it entered into with the defendant. 12 No particulars were given of the contention the defendant may seek to advance. In the course of argument the defendant did not attempt to identify what opportunity may have been available to the plaintiff, or how the misrepresentation alleged to have been made in November 1999 may have caused the plaintiff to lose such an opportunity. 13 The hypothetical alternative case the defendant wishes to have the opportunity to propound would be that the plaintiff suffered economic loss of a different kind to that which the plaintiff alleges it did suffer, and that such loss was caused by part of the misleading conduct on which the plaintiff relies. 14 I do not accept that such a case, if established, would be an answer to the plaintiff's claim for damages for breach of s 52. Subsection 82(1) of the Trade Practices Act provides: "82. Actions for damages (1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention."