Barbara Ann O’Sullivan v Challenger Managed Investments Ltd (No. 2) [2007] NSWSC 664

New South Wales Supreme Court

CITATION : Barbara Ann O'Sullivan v Challenger Managed Investments Ltd (No. 2) [2007] NSWSC 664

HEARING DATE(S) : 05/06/07

JUDGMENT DATE : 5 June 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 5 June 2007

DECISION : See paragraphs 23-32 of judgment.

CATCHWORDS : PROCEDURE - Pleadings - Amendment of pleadings - Leave to amend granted - Costs - No questions of principle.

CASES CITED : Campbell's Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58

Barbara Ann O'Sullivan PARTIES : v Challenger Managed Investments Ltd (No. 2)

FILE NUMBER(S) : SC 4799/06

COUNSEL : Plaintiff: A Leopold Defendant: P Whitford, M Henry

SOLICITORS : Plaintiff: Maurice Blackburn Cashman Defendant: Arnold Bloch Leibler

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

WHITE J

Tuesday, 5 June 2007

4799/06 Barbara Ann O'Sullivan v Challenger Managed Investments Ltd (No. 2) JUDGMENT 1 HIS HONOUR: Following the delivery of my reasons for judgment of 24 April 2007, the plaintiff seeks leave to amend the originating process and statement of claim in order, it is said, to conform with my reasons for judgment as to what claims could appropriately be brought as a representative action for declaratory relief. 2 The substantive amendments proposed to the originating process are to delete the claim for damages by the represented persons and to confine the damages claim to a claim by the plaintiff. 3 No substantive amendment is sought in relation to the terms of the declaration. The plaintiff seeks leave to file an originating process which would relevantly claim the following relief: that "the plaintiff claims ... in her own right and on behalf of the each of the Represented Persons a declaration that in the issuing of the prospectus, the defendant engaged in conduct which was misleading or alternatively which was misleading or deceptive were likely to in contravention likely to mislead or deceive in contravention of s 12DA of the ASIC Act and/or s 42 of the Fair Trading Act." 4 The amendments to the statement of claim are more extensive. Rather than pleading the non-disclosure of facts to the plaintiff and the represented persons, the plaintiff pleads that certain facts were in existence when the prospectus was issued and at all times during which the invitation in the prospectus to apply for units in the trust was on foot. In substance, those facts were the same matters which formerly were pleaded as matters which were not disclosed to the plaintiff and the represented persons. It is then pleaded that, by its conduct in issuing the prospectus and making statements alleged to be contained in the prospectus, the defendant made certain representations to the public which are themselves alleged to be misleading and deceptive. The amendments cure the problem which was identified in paragraphs 54-57 of my reasons for judgment of 24 April 2007 in relation to the difficulty of the proceedings continuing as representative proceedings in relation to the claim for declaratory relief. The proposed amendments to the statement of claim also delete the claims for damages for the represented persons.