› Contravention of s 1041E — false or misleading statements
Limitation of actions
› Statutory limitation periods
› Whether limitation extinguishes right or bars remedy
Quick Take
1Section 1041I(2) of the Corporations Act operates to extinguish the right to bring an action under s 1041I(1) after six years, rather than merely barring the remedy; consequently, neither r 36.01(6) of the Rules nor s 34 of the Limitation of Actions Act 1958 (Vic), picked up via s 79(1) of the Judiciary Act 1903 (Cth), empowers a state court to allow an out-of-time amendment introducing a s 1041E claim, and s 1322(4)(d) of the Corporations Act is similarly unavailable to extend the period.
2A proposed claim under s 1041E of the Corporations Act, which requires proof of a fault element (knowledge or constructive knowledge of falsity), falls outside the perimeter of a generally indorsed writ that notified only negligence and no-fault misleading or deceptive conduct claims under the ACL, Corporations Act s 1041H and ASIC Act, even where the impugned conduct is the same.
3Loss of viable and realistic third-party contribution claims (here against directors, auditors, valuers and lawyers) caused by the expiry of the s 24(4) Wrongs Act 1958 (Vic) time limit constitutes irreparable prejudice warranting refusal of leave to amend, particularly where the proposed claim is non-apportionable and not subject to a professional standards liability cap.
