CC Containers Pty Ltd & Ors v Lee & Ors [2011] VSC 537

CC Containers Pty Ltd & Ors v Lee & Ors [2011] VSC 537 - VSC 2011 case summary — Zoe

[100]

23 Mr Neale criticises the pleading as there is no allegation of his involvement with steps 1, 2, 3, 4 or 6. He contends that although the proposed amended pleading alleges a conspiracy to injure MSC and MSCA by unlawful means (being the issuing of false invoices in contravention of the Crimes Act) with the intention of causing MSC and MSCA to pay such false repair invoices, the particulars do not allege any association or dealing involving him to commit these crimes or any overt act performed by him to bring them about. He says that the only matters particularised against him are first, the issue and payment of the Dawn Trading invoices (but there is no allegation that he knew whether the invoices were paid within a day or days of the payment of the false repair invoices by MSC and/or MSCA) and second, that they generally equated to an amount of between 2% and 3% of the amounts paid by MSC and/or MSCA to CCC Old Co.[25] Counsel for Mr Neale noted that "thereby" it is alleged that, whilst Mr Neale was a director of MSCA,[26] he "joined in the repair fraud" from at least October 2002 with Mr Lee and Kevin Chong and Kain Chong.[27] It is also alleged that Mr Neale "failed to disclose" to MSCA their unlawful acts and "his receipt of a portion of the proceeds of the false repair invoices".[28] Mr Neale contends that central to all of these allegations is knowledge on his part that Mr Lee and Mr Chong were defrauding CCC Old Co (a company with which Mr Neale had no connection) and that Dawn Trading was being paid with part of the proceeds derived from the alleged fraud (though neither Dawn Trading nor Mr Neale played any part in the alleged criminal conduct which extracted the money from MSC or MSCA). Mr Neale says that no means of knowledge is pleaded and nor is it evident why the other defendants should have told Mr Neale about what they were doing. He says that there is no basis for making any allegation of criminal conduct against him and that the allegations are oppressive and an abuse of process. He says that the conspiracy pleading against him in respect of the repair fraud must fall. Similarly he contends that paragraph 13B of the proposed pleading (breach of fiduciary and statutory duties, fraud and secret commission) must fall as it relies on the earlier pleaded paragraphs. Similarly, he submits that the pleading in subsequent paragraphs as to other equitable claims and relief must fall as they too rely on the earlier paragraphs in the pleading.

[118]

30 In my view, the proposed pleading is sufficiently formulated such that leave to file and serve it should be granted. The claim of an unlawful means conspiracy against Mr Neale entails allegations that he unlawfully conspired to injure MSC and MSCA by unlawful means by the issuing to MSC and MSCA of the false shipping container repair invoices and by the sharing and distributing of the proceeds derived from those invoices. Although the only particulars of his alleged involvement in the fraud and the alleged overt acts performed by him are limited to matters concerning the issuing, timing, amount and payment of the Dawn Trading invoices, this does not mean that there is no allegation against him in relation to the issuing of the false repair invoices by CCC Old Co to MSC and MSCA. As noted above, a conspiracy can be proved without evidence of an express agreement. The plaintiffs' case is that Mr Neale's involvement to join in the alleged unlawful acts (the alleged false repair invoices and the alleged sharing of the proceeds derived from them) is to be inferred from the other facts pleaded against him.[29] On the basis of the pleaded matters, such a claim is arguable. Whether it will succeed or not is a matter for evidence and submissions at trial. Whilst particulars may have been given stating that the involvement or agreement of Mr Neale to join in the unlawful acts is to be inferred from the other facts alleged, I do not think that the absence of them from the proposed second further amended statement of claim gives rise to a basis to refuse to grant leave for the pleading to be filed and served. That is particularly so when regard is had to the overarching purpose of the rules of court which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[30] That the case made against Mr Neale is based on inferences to be drawn from other facts is clear from the written and oral submissions made on behalf of the plaintiffs. In this case, those submissions make the giving of further formal particulars otiose.

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