Geoffrey Francis PAGE v Hugh Stanely McKENSEY & Ors

[2004] NSWCA 437

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Pleadings
3. › Amendment of statement of claim
4. › Leave to amend
5. › Discretionary refusal
6. › Whether leave should be granted to file further amended statement of claim raising fraud claim
7. › Whether appellate court should interfere with discretionary refusal
1. Practice and Procedure
2. › Appeal
3. › Interlocutory orders
4. › Leave to appeal
5. › Whether appeal from refusal of leave to amend is interlocutory
6. › Whether leave should be granted
1. Limitation of Actions
2. › Fraud
3. › Postponement of limitation period
4. › Date of discovery of fraud
5. › Whether plaintiff ought with reasonable diligence to have discovered fraud earlier
6. › Limitation Act 1969 (NSW), ss 14, 55(1)
1. Tort
2. › Deceit
3. › Fraudulent misrepresentation
4. › Inducement to enter partnership
5. › Representations as to existence of restrictive covenant and friendly firm agreement

Quick Take

Inspection of a document that reveals the falsity of a representation is sufficient to constitute discovery (or constructive discovery) of fraud for the purposes of s 55(1) of the Limitation Act 1969 (NSW), even if the plaintiff did not appreciate the full legal import of the document at the time. A court will not permit an amendment to a statement of claim that is doomed to fail on limitation grounds, and the plaintiff bears the persuasive onus of establishing a viable claim once the limitation issue has been raised.