A new cause of action for breach of contract may arise out of substantially the same facts as an existing statutory claim for misleading and deceptive conduct where the contractual standard (here, cl 25.1 of the Code of Banking Practice requiring the care and skill of a diligent and prudent banker) closely parallels the statutory standard (reasonable grounds for representations under s 51A TPA). A 'change of focus' in the new cause of action does not of itself prevent a finding that the new cause of action arises out of substantially the same facts. The policies underlying limitation periods should inform the analysis, and if those policies are not threatened by the proposed amendment, the test may be satisfied even though the new claim involves some variation in the facts.
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