Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676 Hearing dates: 26 September, 10-11 November 2014 Decision date: 27 November 2014 Jurisdiction: Common Law Before: Hamill J Decision: (1) The application of the 3rd defendant for summary dismissal of the proceedings is refused. (2) The application of the 3rd defendant for the amended statement of claim to be struck out is refused. (3) The application of the 5th, 6th, 7th and 8th defendants for summary dismissal of the proceedings is refused. (4) The application of the 5th, 6th, 7th and 8th defendants for the amended statement of claim to be struck out is refused. (5) The plaintiffs have leave to file a further amended statement of claim in the form provided on 16 October 2014 conditional upon it being amended in accordance with the terms of this judgment. (6) The further amended statement of claim shall be filed on or before 12 December 2014. (7) The date that the amendments are to take effect and the question of whether they are brought outside the relevant limitation periods are matters reserved for the decision of the trial Judge. (8) The matter will be listed before the Registrar on 18 December 2014 for directions. (9) Costs of all motions are reserved to the trial judge. Catchwords: CIVIL LAW - application for summary dismissal by five of a multiplicity of defendants in proceedings arising out of collapse of ABC Learning Centres - plaintiffs underwrote the issue of $600 million worth of reset convertible notes - correct test for summary disposal - liability of company secretary/general counsel and non-executive directors for false and misleading representations - answers in management questionnaire completed in advance of notes issue - liability for Directors' Declaration made pursuant to Corporations Act - whether representations properly pleaded - whether representations of fact or opinion - implied representations arising from statements of opinion - whether conduct "in trade or commerce" - whether conduct "in relation to a financial product or service" - disjunctive pleading or reliance - whether amendments were brought within limitation period - application to amend statement of claim Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Civil Procedure Act 2005 (NSW) Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Fair Trading Act 1987 (NSW) Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ASIC v Adler & 4 Ors [2002] NSWSC 171; 168 FLR 253 ASIC v Healy [2011] FCA 717; 196 FCR 291 ASIC v Narain [2008] FCAFC 120; 169 FCR 211 Austral Pacific Group Limited (in liquidation) v Airservices Australia [2000] HCA 39; 203 CLR 136 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 Beach Petroleum v Johnson [1991] FCA 839; 105 ALR 456 Boscolo v Consumer Trader and Tenancy Tribunal [2014] NSWSC 997 Bott v Carter [2012] NSWCA 89 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 Clasul Pty Ltd v Commonwealth of Australia [2014] FCA 1133 Collier v Lancer (No 2) [2013] NSWCA 186 Concrete Constructions (NSW) v Nelson [1990] HCA 17; 169 CLR 594 Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 Ford v Nagle and Ors [2004] NSWCA 33 Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Guglielman v Trescowthick [2004] FCA 326 Hawkins v Clayton [1988] HCA 15; 164 CLR 539 Ingot Capital Investments v Macquarie Equity Capital Markets [2003] NSWSC 1012 Ingot v Macquarie (No 3) [2005] NSWSC 255 Ingot v Macquarie [2004] NSWSC 1219 Jensen v the State of New South Wales [2014] NSWSC 682 Karl Suleman Enterprizes Pty Ltd (in liq) v Pham [2013] NSWSC 110 Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2014] NSWCA 388 MGICA (1992) Ltd (formerly MGICA Ltd) v Kenny & Good Pty Ltd [1996] FCA 766; 140 ALR 313 State of New South Wales v Williams [2014] NSWCA 177 Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 Shafron v ASIC [2012] HCA 18; 247 CLR 465 Simmons v Henwood [2013] NSWCA 184 Simmons v Protective Commissioner of NSW [2012] NSWSC 455 Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 University of Wollongong v Metwally [1984 ] HCA 74;158 CLR 447 Village Building Co v Canberra International Airport [2004] FCAFC 240; 139 FCR 330 Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 Wickstead v Browne [1992] NSWCA 272; 30 NSWLR 1 Yorke v Lucas [1985] HCA 65; 158 CLR 661 Texts Cited: Ritchie's Uniform Civil Procedure Category: Interlocutory applications Parties: Commonwealth Bank of Australia (Plaintiff) Commonwealth Securities Limited (Plaintiff) Jillian Glenda Bannan (3rd Defendant) Sallyanne Atkinson (5th Defendant) William Eric Bessemer (6th Defendant) David James Ryan (7th Defendant) Lawrence James Anthony (8th Defendant) Representation: Counsel: AJ Sullivan QC; JJ Hutton (26 September) and I Pike SC; JJ Hutton(10-11 November) (Plaintiffs) D L Williams SC; K J Williams (3rd Defendant) R Rydge (4th Defendant) RA Dick SC & D Barnett (5th - 8th Defendant)T M Dowling (10th Defendant) N Andrew (11th -18th Defendants, 34th - 38th Defendant) Solicitors: Jones Day (Plaintiffs) DLA Piper (3rd Defendant) Quinn Emanuel Urquhart & Sullivan (5th - 8th Defendant) File Number(s): 2013/165057 Publication restriction: Nil