The Bell Group Ltd (in Liq) & Ors v Westpac Banking Corporation & Ors

[2001] WASC 315

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Practice and Procedure
2. › Pleadings
3. › Amendment of statement of claim
4. › Late amendment in complex commercial litigation
5. › Whether amendments disclose reasonably arguable cause of action
6. › Whether amendments cause prejudice that cannot be cured
7. › Balancing interests of justice
1. Practice and Procedure
2. › Pleadings
3. › Amendment of statement of claim
4. › Test for allowing amendment
5. › Whether cause of action so obviously untenable that it cannot possibly succeed
6. › General Steel Industries test applied to amendment applications
1. Equity
2. › Equitable fraud
3. › Fourth category in Earl of Chesterfield v Janssen
4. › Imposition and deceit on persons not parties to fraudulent agreement
5. › Whether equitable fraud extends beyond knowing misrepresentation
6. › Whether categories of equitable fraud are closed
1. Practice and Procedure
2. › Discovery
3. › Implied undertaking
4. › Use of discovered documents to join new party and formulate new claims
5. › Whether use bears reasonable relation to prosecution of existing case
6. › Home Office v Harman rule

Quick Take

The General Steel Industries test for summary dismissal applies equally when assessing whether a proposed amendment discloses a reasonably arguable cause of action. Where a proposed amendment discloses an arguable cause of action that is not embarrassing, leave should be granted unless the opposing party demonstrates prejudice that cannot be cured. The use of discovered documents to join a new party whose claim arises from the same or closely related factual matrix does not breach the implied undertaking, provided the use bears a reasonable relation to the prosecution of the existing case. Limitation defence questions arising from amendments are best deferred to the trial judge.