The correct test for refusing leave to amend a pleading on the ground that the proposed claim would not succeed is whether the amendments raise a claim that has no real prospect of success within the meaning of s 63(1) of the Civil Procedure Act 2010 (Vic). Pre-CP Act authorities setting a lower threshold for amendment must be approached with caution. A trust deed clause authorising the trustee to exercise powers notwithstanding a director's personal interest in the result is an insurmountable obstacle to a claim based solely on the existence of dual capacities (structural conflict) without additional pleaded facts of actual impropriety.
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