J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Pty Ltd [2014] FCA 1380 | Case summary

The Applicant has leave to file the Proposed Further Amended Statement of Claim (as amended in the particulars to paragraph 23 by letter dated 2 December 2014) and proposed Amended Originating Application.
The First Respondent's application filed 13 October 2014 for summary judgment in respect of certain paragraphs of the Amended Statement of Claim be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 The applicant ("Vaughan Super") seeks leave to amend its statement of claim and originating application. The first respondent ("Becton") opposes the grant of leave and seeks judgment in respect of certain paragraphs of the existing pleading. The background to the application is in part set out in the reasons for decision on earlier applications brought primarily by the then third and fourth respondents ("Mr Beck" and "Mr Taylor", respectively) to the proceeding when first issued (see: J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581), but who have since settled with Vaughan Super and are no longer parties. The second respondent ("Mr Macdonald"), whose liability is alleged by Vaughan Super as an ancillary to the claims against Becton, relies essentially on Becton's opposition to the grant of leave on the basis that the ancillary liability alleged against Mr Macdonald cannot be maintained if the primary liability alleged against Becton cannot succeed as pleaded. Mr Macdonald's position is not that he could not be sued independently of Becton (see Matheson Engineers Pty Ltd v El Raghy (1992) 37 FCR 6, 9; Western Australia v Bond (1991) 28 FCR 68, 88), but that the claim for ancillary liability against Mr Macdonald must necessarily fail against him to the extent that the primary liability pleaded against Becton is defective. 2 A complaint raised by Becton in opposition to the grant of leave was expressed to be that the present proposed pleading is "now the seventh iteration of its claims"; however a complaint in those terms substantially misstates the true position as between Vaughan Super and Becton. Becton had not previously challenged the pleading against it and had played a minimal role in the interlocutory disputes which had been the subject of the earlier decision. The effect of the earlier decision was to leave open the possibility for Vaughan Super to replead its case against those respondents who had successfully challenged the pleadings against them. The pleading by Vaughan Super against Becton had not been in issue and no orders had been made in respect of that pleading. The practitioners for Vaughan Super, however, understood from observations made upon the grant of leave to replead that any repleading against the respondents who had succeeded in their interlocutory applications should be used as an occasion to reconsider and recast the pleading as a whole. That is what happened. A new pleading was drawn against all of the then respondents, including the two with whom Vaughan Super has since settled its dispute. The pleading for which leave is now sought, however, is no longer pressed in respect of the two respondents with whom Vaughan Super has settled, and what remains is Vaughan Super's reformulated claims against Becton and Mr Macdonald. In those circumstances it would be wrong to treat the current application for leave as if it were a "seventh iteration" of an attempt to plead a case against Becton. 3 The factual complaints against Becton has always been that Becton made misleading representations in a statement or media release to the Australian Stock Exchange ("ASX"), and that there were a number of matters which were not disclosed to the ASX which ought to have been disclosed. The cause of action said to be enlivened by the factual complaints, however, has changed in the iteration in the present proposed pleading from the existing pleading against Becton. The existing pleading against Becton alleged that Becton's representations and lack of disclosure gave rise to causes of action under ss 1041E, 1041F and 1041H of the Corporations Act 2001 (Cth), ss 12DA and 12DC of the Australian Securities and Investments Commission Act 2001 (Cth), s 52 of the Trade Practices Act 1974 (Cth), s 42 of the Fair Trading Act 1987 (NSW) and s 9 of the Fair Trading Act 1999 (Vic). Those causes of action are replaced in the proposed pleading, and Becton now relies only upon s 1041I (for breach of s 1041H) and s 1325 (for breach of s 674(2)) of the Corporations Act 2001 (Cth). The proposed amendments to the originating application make corresponding changes reducing the claims to those arising under ss 1041I and 1325 of the Corporations Act 2001 (Cth). 4 Becton submitted that Vaughan Super has not made out a case for leave to file the proposed pleading and that leave should not be granted either because of the form of the pleading or as a matter of discretion. One of Vaughan Super's claims under the proposed pleading is for compensation under s 1041I for contraventions of s 1041H of the Corporations Act 2001 (Cth). The statutory contraventions said by Vaughan Super to enliven its claim for compensation under s 1041I are said to be the breaches of s 1041H(1). In a claim for damages for breach of a statute it is the suffering of the loss or damage that enlivens a cause of action for what would otherwise be no more than a contravention of statute: Brown v Jam Factory Pty Ltd (1981) 53 FLR 340, 348-51; Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) 75 ALR 271, 279. That requires that the "material facts establishing the necessary causal link should be pleaded" because a necessary element of the cause of action is the loss or damage arising from the alleged contravention: Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215, 222. 5 Becton contends that Vaughan Super has failed properly to plead a cause of action for damages based upon those sections. Section 1041H(1) provides: A person must not, in this jurisdiction, engage in conduct, in relation to a financial product or a financial service, that is misleading or deceptive or is likely to mislead or deceive. A pleading merely repeating the language of the provision of a statute followed by a bold assertion of contravention would not be a permissible pleading: McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409, [23]. Becton contended that to enliven a claim for compensation under s 1041I a proper pleading of contravention of s 1041H required Vaughan Super to plead specifically: (a) what erroneous meaning or meanings were actually conveyed to Mr Vaughan having read the ASX Statement; (b) which of those meanings Mr Vaughan relied on in making specifically identified share purchases; (c) the facts and circumstances by which Vaughan Super will establish that the ASX Statement would also have conveyed the erroneous meanings relied on to a reasonable person who commonly invests in securities and who would also have reasonably relied on each of those meanings in the way relied on by Mr Vaughan; (d) the damage claimed to be caused by each reliance on each of those erroneous meanings; and (e) the facts and circumstances to be relied on to demonstrate how the damage claimed, on the one hand, stood to each erroneous meaning relied upon on the other hand, so as to demonstrate legal cause and effect. It was submitted for Becton that Vaughan Super is required to plead, but that it had not pleaded, the causal connection between the specific injury claimed and the contravention alleged to have caused that injury. It was submitted, in particular, that the material facts pleaded needed to provide a logical connection between the conduct relied upon and the injury claimed. 6 Care must be taken when determining pleading disputes not to lose sight of their primary function as being to give adequate notice to an opposing party of a claim or case that has to be met. What must be pleaded, however, is a cause of action which, if the material facts are established at trial, will support the relief claimed. The cause of action to be pleaded need not usually anticipate possible defences which may be raised, and ambiguity in the pleading may not warrant strike out or refusal of leave: see Right Home Improvements International Pty Ltd v Imperial Alarm Screens (Aust) Pty Ltd (1986) ATPR 40-641, 47,201; Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215, 221. Care must be taken in a pleadings dispute, therefore, not to confuse the question of whether a plaintiff has pleaded adequately a cause which, if established at trial, will support the relief sought with the question of whether the plaintiff's cause has pleaded all matters which might defeat the claim if raised in defence or which the plaintiff may fail to establish by evidence. 7 The elements necessary to establish a cause of action under s 1041H were considered recently by the Full Federal Court in ABN AMRO Bank NV v Bathurst Regional Council (2014) 309 ALR 445 where the court said at [767] in upholding the decision of the trial judge: At trial, LGFS established that (a) by communicating the rating S&P made the representations as to having reasonable grounds for and exercising reasonable care and skill in forming its opinion, (b) S&P did not have reasonable grounds nor did it exercise reasonable care and skill, and (c) in those circumstances S&P engaged in misleading or deceptive conduct. S&P does not challenge (b) and subject to its reliance on the disclaimers does not challenge (a). Point (c) follows from (a) and (b), subject only to the disclaimer point. The loss or damage claimed as compensation under s 1041I by Vaughan Super in this case is pleaded in paragraph [25] of the proposed pleading as arising from the matters referred to in paragraphs [15] to [24]. The foundation of the cause of action claimed by Vaughan Super in this connection are the specific statements made in the ASX Statement which are pleaded in paragraph [15] and are annexed to the proposed pleading as Schedule B. Paragraph [18] of the proposed pleading sets out what Vaughan Super claims to be the representations which Vaughan Super contends were made by those statements to the ASX which are pleaded in paragraph [15]. It is the representations said to be made by the statements which the proposed pleading claims were relied upon by Vaughan Super to its detriment and to be the cause of loss and damage. 8 The relevant parts of the proposed pleading (as amended in the particulars to paragraph 23 by letter from Vaughan Super's solicitors on 2 December 2014) are: ASX STATEMENT- 31 AUGUST 2006 ASX Statement Representations 15. On or about 31 August 2006, Becton made and lodged a statement or media release document that was marked "price sensitive" and titled "Becton secures approval for $130 million Byron Bay Resort" (ASX Statement) to ASX. PARTICULARS A copy of the ASX Statement is annexed as· Schedule B. 16. On or about 31 August 2006 the ASX uploaded and posted a copy of the ASX Statement on its website in the section dedicated to Becton and the posting has remained since that date. 17. The ASX Statement included the following statements: (i) Becton secured approval for $130 million Byron Bay Resort. (ii) The Becton Property Group (Becton) yesterday welcomed the decision by the NSW Minister for Planning to approve the Development Application for Becton 's North Beach Byron site. (iii) This approval provides resolution for the future of a site that has been in dispute for more than a decade, firstly with Club Med and most recently wfth Becton. (iv) Becton CEO, Hamish Macdonald said Becton was •delighted with the result and proud of the company's achievement in securing approval for the redevelopment of such a significant and environmentally sensitive coastal site". (v) "This is the last significant, waterfront site in Byron Bay and represents a great opportunity for Becton to continue its tradition of creating exceptional developments in exceptional locations," said Mr Macdonald. (vi) The approved resort wilt create 50 additional permanent jobs, at least $800,000 of additional expenditure in the local economy per annum and 150 jobs during construction. (vii) Becton acquired the site in December 2001, for $12.8 million from Club Med which paid circa $16 million in 1991. (viii) Becton is enjoying significant momentum with the recent announcement that it would exceed its FY206 profit forecast laid out in the company's prospectus and confirmation of $95m in acquisition within its funds management business since 30 June 2006, taking funds under management to around $900 million. 18. By the ASX Statement Becton represented that: 18.1. Becton was the registered proprietor of the waterfront site at Byron Bay acquired from Club Med (the Land) and that: (i) There was no beneficial owner of the Land other than the registered proprietor of the land, as there was no reference to any joint venture or any joint venture parties with any interests in the Land; (ii) Becton was not holding the Land on trust for others, as there was no reference to any joint venture or any joint venture parties with any interests in the Land; (iii) There were no equitable interests in the Land which could be asserted by non-Becton interests; 18.2. Becton had paid the whole of the purchase price of $12.8M in or about December 2001 (the Disclosed Purchased Price) to become the registered proprietor of the Land; 18.3. Since December 2001, Becton had been the registered proprietor of the whole of the Land and that the Disclosed Purchase Price was the whole of the price to be paid to be the sole owner of all of the interests in the Land. 18.4. Since December 2001, Becton had been the registered proprietor of the whole of the interests in the Land and Becton would therefore be entitled to all of the current and future profits derived from the development of the Land in accordance with the development approval referred to in the ASX Statement; 18.5. Becton was not a party to any agreement or transaction or other arrangement the effect of which would require it to share profits to be derived from the development of the Land in accordance with the development approval referred to in the ASX Statement with any entities which were not a Becton subsidiary; 18.6. Becton was not a party to a joint venture agreement in respect of the Land or any development thereof (ASX Statement Representations). PARTICULARS (a) The ASX Statement Representations were partly express and partly implied. To the extent that they were express they were made by the statements that: "Becton secured approval for $130 million Byron Bay Resort." "The Becton Properly Group (Becton) yesterday welcomed the decision by the NSW Minister for Planning to approve the Development Application for Becton's North Beach Byron site" "This is the last significant, waterfront site in Byron Bay and represents a great opportunity for Becton to continue its tradition of creating exceptional developments in exceptional locations," said Mr Macdonald." "Becton acquired the site in December 2001, for $12.8 million from Club Med which paid circa $16 million in 1991." "This approval provides resolution for the future of a site that has been in dispute for more than a decade, firstly with Club Med and most recently with Becton." (b) To the extent that the ASX Statement Representations were implied they were implied from the facts that the ASX Statement conveyed and reasonably conveyed to a person reading the ASX Statement and contemplating acquiring Becton shares that: (i) The development approval that had been granted was for "Becton"; (ii) Since there was no mention of a joint venture, no other person or entity would share in the profits from the development of the Land; (iii) Since there was no mention of any other person or entity being interested in the development no other person or entity was interested legally or beneficially in the Land or any development on it; (iv) The Land was acquired by Becton in December 2001; (v) No consideration was paid by Becton for the Land other than the Disclosed Purchase Price. Becton's Misleading and Deceptive Conduct by misstatement- ASX Statement 19. The making of the ASX Statement Representations constituted conduct by Becton in relation to financial products, within the meaning of subsections 1041H(1) and 1041H(2)(b) of the CA. 20. The making of the ASX Statement Representations constituted conduct that was misleading or deceptive in contravention of section 1041H(1) of the CA in that: 20.1. Becton was not the registered proprietor of the Land; and (i) There were beneficial owners of the Land other than the registered proprietor of the Land; (ii) Becton was holding the Land on trust for others; (iii) There were equitable interests in the Land which could be asserted by non-Becton interests; 20.2. Becton had not paid the whole of the Disclosed Purchase Price in or about December 2001 to become the registered proprietor of the Land; 20.3. Since December 2001, Becton had not been the registered proprietor of the whole of the interests in the Land and the Disclosed Purchase Price was not the whole of the price to be paid to be the sole owner of all of the interests in the land; 20.4. Since December 2001, Becton had not been the registered proprietor of the whole of the land and would therefore not be entitled to all of the current and future profits derived from the development of the land in accordance with the development approval referred to in the ASX Statement: 20.5. Becton, by its subsidiaries, Taylorise, Portside and Becton Construction Services, was a party to agreements or transactions or other arrangements, the effect of which was to require it to share profits to be derived from the development of the Land in accordance with the development approval referred to in the ASX Statement with non Becton entities; 20.6. Becton, by its subsidiaries, Taylorise, Portside and Becton Construction Services, was a party to two joint venture agreements in respect of the Land or any development thereof. PARTICULARS (i) Taylorise, and not Becton, was at the time that the ASX Statement was made was the registered owner of the "Byron Bay Resort". In or about January 1992, Holiday Villages (Byron Bay) Pty Ltd (ACN 003 488 015) (Holiday Villages) purchased for the sum of sixteen million dollars all of the land described in Folios 2/7/1623 to 33/7/1623 inclusive, Auto Consol 15379-136, Folio 44/7/136, Auto Consul 15512-180, Folios 1/243218 to 13/243218 inclusive, 447/812102, 449/812102,450/812102, 1/780243 (Vol 4002 Fol 213), 2/620642 and 1/190757 known as 'Byron Bay Beach Resort' and situated at Bayshore Drive, Byron Bay in the State of New South Wales. In or about January 2002, Holiday Villages transferred all of its interest in the Land to Taytorise in consideration for the Disclosed Purchase Price. A copy of the written undated transfer of ownership pursuant to the Real Properly Act 1990 (NSW), being document 826480E is available for inspection at the offices of the Applicant's solicitors. (ii) Neither Becton nor Taylorise had paid the whole of the Disclosed Purchase Price. In or about December 2001 and January 2002, Beck Corporation Pty Ltd paid $7,680,000 of the Disclosed Purchase Price for Portside to acquire joint venture interests in the Land (Portside Payment). The Portside Payment was recorded in the 2002 BGH Annual Report dated 9 September 2002 (2002 BGH Annual Report) and signed by Beck and Taylor as directors, which stated at paragraph 9 in the Directors Report and Note 20 on page 22 to the effect that the Beck Construction Group Trust had loaned about $16.75 million to Becton Pty Ltd's investments in the Land (and the Essendon Airport). A copy of the 2002 BGH Annual Report is available for inspection at the offices of the Applicant's solicitors. (iii) Neither Becton, nor Taylorise, had acquired the whole of the interests of the Land for the Disclosed Purchase Price, as Becton through its subsidiaries, Taylorise, Portside and Becton Construction Services, had entered into two joint ventures with non Becton entities to acquire and develop the Land, of which Becton had a 40% interest, namely; (1) Taylorise Joint Venture Agreement Pursuant to an agreement made on or about 6 December 2001 with effect from 4 October 2001 between Portside, The Cove Group Pty Ltd (ACN 097 154 973) (Cove Group) and Taylorise, where Taylorise was appointed the bare nominee and agent of Portside and the Cove Group (Taylorise Joint Venture Agreement). The effect of the terms of the Taylorise Joint Venture Agreement were that Portside and Cove Group agreed to associate with each other in a joint venture to: (a) Acquire, hold and develop the Land; and (b) Operate the business of holding the Land, developing the Land and any business on or in relation to the Land from time to time or any business to be conducted by Taylorise. The Tay1orise Joint Venture Agreement is in writing and contained in a document executed by each of the joint venture parties thereto and dated 6 December 2001. A copy is available for inspection at the offices of the Applicant's solicitors. The Applicant may refer to this Agreement at trial for its full meaning and effect. (2) Portside Joint Venture Agreement Pursuant to an agreement made on or about 15 March 2002 with effect from 4 October 2001 between Becton Construction Services and Beck Corporation and Portside, Becton Construction Services and Beck Corporation agreed to associate with each other in a joint venture to acquire and hold the Tay1orise's interests held by Portside in the Taylorise Joint Venture, where Portside was appointed the bare nominee and agent of Beck Corporation and Becton Construction Services (Portside Joint Venture Agreement). The Portside Joint Venture Agreement was in writing and contained in a document executed by each of the joint venture parties and dated 15 March 2002. A copy of this document is available for inspection at the offices of the Applicant's solicitors. The Applicant may refer to this Agreement at trial for its full meaning and effect. Portside's 40% interests were stated in writing in a Becton document titled 'Structure Diagram - Byron Bay Joint Venture (2002 - 2007)'. A copy of the document is available for inspection at the offices of the Applicant's solicitors. (iv) Pursuant to the Portside Joint Venture Agreement, Becton's interests and rights to current and future profits to be derived from the development of the Land in accordance with the development approval referred to in the ASX Statement was limited to 40% and subject to: (a) Beck Corporation's interests in the joint venture interests being preferential to the interests of Becton Construction Services by the operation of clauses 1.1.12, 3.1.5, 4.1, 5.2, 5.3, 5.4.4 5.5 and 9.1 (Preferential Interests) in that: (A) Beck Construction's interests to the Portside Joint Venture Agreement distribution of capital from the joint venture assets, profits, net income and capital payments were preferential to those of Becton Construction Services; and (B) Beck Construction was to be paid an amount equal to the cost of each preference multiplied by the reference rate of 15% per annum not compounding from 6 December 2001 until such time as Beck Corporation's preferential interest was redeemed. (b) A priority payment to Beck Corporation of $5,483,154 together with interest at the rate of 15% per annum not compounding from 6 December 2001 (Priority Payment). Portside's 40% interests were stated in writing in a Becton document titled 'Structure Diagram - Byron Bay Joint Venture (2002 - 2007)'. A copy of the document is available for inspection at the offices of the Applicant's solicitors. The Portside Joint Venture Agreement is in writing and contained in a document executed by the parties thereto and dated 15 March 2002. A copy of this Agreement is available for inspection at the Applicant's solicitors. The Applicant may refer to this Agreement at trial for its full meaning and effect. 21 Becton took no steps to lodge with the ASX a price sensitive and/or media release in like form to the form of the ASX Statement following the issuance of the ASX Statement correcting, qualifying or withdrawing the ASX Statement. 22. By reason of the matters referred to in paragraphs 20 to 21 each of the ASX Statement Representations were continuing representations and continued to be made until at least 28 November 2008. 23. Prior to May 2008, Dansar as the trustee of the Trust became aware of the ASX Statement and acting in reliance on it, and on the faith and truth of the ASX Statement Representations, Dansar purchased each of the share parcels, which comprise the Share Purchase. PARTICULARS At some time following about September 2006 and before May 2008 Mr John Vaughan (Vaughan), the director of Dansar responsible for making investments on behalf of the Trust accessed the ASX website. and read the contents of the ASX Statement. Because the ASX Statement had not been corrected, qualified or withdrawn by an ASX Statement in like form to the ASX Statement Vaughan assumed that the ASX Statement Representations and each of them were true and correct and that the facts, matters and circumstances stated in the ASX Statement and conveyed by the ASX Statement Representations it continued to be the case. [The amendments to these particulars were notified to Becton and Mr Macdonald by letter dated 2 December 2014 by Vaughan Super's solicitors.] These paragraphs relevantly plead: (a) representations and the statements by which the representations were said to have been made; (b) the communication of the representations to the applicant; (c) the falsity of the representations; (d) reliance on the representations; (e) inducement on the basis of the representations; and (f) loss and damage caused by reliance on the representations. 9 I do not accept Becton's submission that paragraphs [15] to [25] do not plead the material facts necessary to be pleaded other than in a way which is conclusionary, embarrassing, evasive or ambiguous. Whether the statements relied upon will support, at trial, the representations alleged may be a matter for debate, but what was asserted to be represented in paragraph [18] from what are said to be the statements set out in paragraphs [15]-[17] is clearly and specifically stated. Whether the representations alleged constituted contraventions within the meaning of s 1041H may similarly be, at trial, a matter for debate, but what Vaughan Super proposes to rely upon to establish the contraventions is clearly and specifically stated. Whether Vaughan Super relied upon the alleged representations and whether the alleged representations caused the loss or damage may likewise be, at trial, the subject of debate, but the claim made by Vaughan Super, whether or not it will succeed, is sufficiently stated. There is no embarrassment for Becton to plead in defence such matters as: whether the statements were capable of containing the representations alleged; whether other disclosures or statements were made which bore upon such questions as reliance; whether Vaughan Super in fact relied upon the representations said to have been made; whether there was inducement; and whether the loss and damage was caused by some factor other than the contraventions which were alleged. A cause of action is not defective because it fails to deal with possible defences that might be raised. 10 Becton contended, however, that Vaughan Super's pleading was defective in establishing an actionable cause of action because it needed to plead the subjective meaning or meanings found in the statements which were actually conveyed to Mr Vaughan. Its contention was that it is not sufficient to plead the representations and that representations were false. In Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45 the court said at [101]: The other classes of case which their Honours had in mind include those of actual or threatened conduct involving representations to the public at large or to a section thereof, such as prospective retail purchasers of a product the respondent markets or proposes to market. Here, the issue with respect to the sufficiency of the nexus between the conduct or the apprehended conduct and the misleading or deception or likely misleading or deception of prospective purchasers is to be approached at a level of abstraction not present where the case is one involving an express untrue representation allegedly made only to identified individuals. The passage draws attention to the need for precision about the nexus between conduct and the representation said to have caused it. The passage makes clear that the nexus needs to be approached at a level of abstraction in some cases that is not necessary where the case involves an express untrue representation allegedly made to identified individuals. The proposed pleading in this case is of the latter category because what Vaughan Super contends in the proposed pleading is that identified representations were made and that Vaughan Super acted to its detriment by relying upon the misrepresentations. The absence of an erroneous assumption by Vaughan Super may be fatal to its cause of action against Becton (see Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653, 730; see also Bennett v Elysium Noosa Pty Ltd (in liq) (2012) 202 FCR 72, 88) but Vaughan Super's pleading is that it was induced by the errors claimed. 11 In Campomar the court went on to say at [104]-[105]: It is here that there arises a critical question on the case put for the appellants. It concerns the so-called "doctrine" of "erroneous assumption" said to be derived from, in particular, decisions of the Full Court of the Federal Court in McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd, Taco Co of Australia Inc v Taco Bell Pty Ltd and Lego Australia Pty Ltd v Paul's (Merchants) Pty Ltd. In their joint judgment in Taco Bell, Deane and Fitzgerald JJ emphasised that "no conduct can mislead or deceive unless the representee labours under some erroneous assumption". Their Honours went on to observe: "Such an assumption can range from the obvious, such as a simple assumption that an express representation is worthy of credence, through the predictable, such as the common assumption in a passing-off case that goods marketed under a trade name which corresponds to the well-known trade name of goods of the same type have their origins in the manufacturer of the well-known goods, to the fanciful, such as an assumption that the mere fact that a person sells goods means that he is the manufacturer of them." Their Honours added that, in determining the question whether conduct properly should be categorised as misleading or deceptive or as likely to mislead or deceive, the nature of the erroneous assumption which must be made before conduct could have that character "will be a relevant, and sometimes decisive, factor". Their Honours rejected: "[any] general proposition of law to the effect that intervention of an erroneous assumption between conduct and any misconception destroys a necessary chain of causation with the consequence that the conduct itself cannot properly be described as misleading or deceptive or as being likely to mislead or deceive". Nevertheless, in an assessment of the reactions or likely reactions of the "ordinary" or "reasonable" members of the class of prospective purchasers of a mass-marketed product for general use, such as athletic sportswear or perfumery products, the court may well decline to regard as controlling the application of s 52 those assumptions by persons whose reactions are extreme or fanciful. For example, the evidence of one witness in the present case, a pharmacist, was that he assumed that "Australian brand name laws would have restricted anybody else from putting the NIKE name on a product other than that endorsed by the [Nike sportswear company]". Further, the assumption made by this witness extended to the marketing of pet food and toilet cleaner. Such assumptions were not only erroneous but extreme and fanciful. They would not be attributed to the "ordinary" or "reasonable" members of the classes of prospective purchasers of pet food and toilet cleaners. The initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers. [Footnotes omitted.] The proposed pleading in this case is not a pleading that depends upon what an abstract objective person might understand to be represented by words and statements actually used. The pleading is that words and statements claimed actually to have been made (see proposed pleading at paragraphs [15] and [17] and Schedule B) objectively carried specified representations (see proposed pleading at paragraph [18]) which were known to (relevantly) Vaughan Super (see proposed pleading at paragraph [23]) and were acted upon by Vaughan Super in reliance on "the ASX Statement Representations" (see proposed pleading at paragraph [23]) and thereby caused the loss and damage said to have been suffered by Vaughan Super (see proposed pleading at paragraph [25]). There is no absence of the kind claimed by Becton of the specific link between representations pleaded and the actual meanings conveyed to, relevantly, Mr Vaughan. Becton is informed by the pleading that the meaning, or meanings, alleged to be represented by identified statements were those claimed to have been acted upon and said to have been the cause of the damage claimed. 12 The case Vaughan Super seeks to bring against Becton for compensation under s 1325 is based upon alleged breaches of s 674(2) of the Corporations Act 2001 (Cth) by reason of Becton having failed to disclose certain matters. In this regard Becton contended that Vaughan Super was required to plead materiality. Becton's claim in this regard is in part that a claim for compensation under s 1325, based upon alleged breaches of s 674(2), requires that there be pleaded that if the non-disclosed matters had been included in the ASX Statement, or had subsequently been disclosed, they would have, by the standards of a reasonable person who commonly invests in securities, materially and negatively affected the share's traded price at the relevant times relied upon. However, the case which Vaughan Super seeks to maintain against Becton is that Vaughan Super would not have made the purchases had Becton made the disclosures specifically identified in its pleading. The claim may ultimately fail on the facts but it is not a defect to the pleading as Vaughan Super proposes to maintain its claim. That is not to say, however, that Becton is not entitled to plead in its defence that a non-disclosure which had no "material" impact could neither have been a breach of s 674 nor a cause of loss. 13 The claim against Becton for loss and damage under s 1325 is alleged in [38] of the proposed pleading. It is said to arise by reason of the matters referred to in paragraphs [26] to [37] and is particularised as the cost of the Becton shares of $2,020,697 on the basis that they currently have no value by reason of the suspension of trading in the shares on 26 February 2013 following the appointment of receivers. The matters pleaded in [26] to [37] are, in summary, said to be breaches of s 674(2). The section relevantly provides: … (2) If: (a) this subsection applies to a listed disclosing entity; and (b) the entity has information that those provisions require the entity to notify to the market operator; and (c) that information: (i) is not generally available; and (ii) is information that a reasonable person would expect, if it were generally available, to have a material effect on the price or value of ED securities of the entity; the entity must notify the market operator of that information in accordance with those provisions. Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1)). Note 2: This subsection is also a civil penalty provision (see section 1317E). For relief from liability to a civil penalty relating to this subsection, see section 1317S. Note 3: An infringement notice may be issued for an alleged contravention of this subsection, see section 1317DAC. (2A) A person who is involved in a listed disclosing entity's contravention of subsection (2) contravenes this subsection. Note 1: This subsection is a civil penalty provision (see section 1317E). For relief from liability to a civil penalty relating to this subsection, see section 1317S. Note 2: Section 79 defines involved. (2B) A person does not contravene subsection (2A) if the person proves that they: (a) took all steps (if any) that were reasonable in the circumstances to ensure that the listed disclosing entity complied with its obligations under subsection (2); and (b) after doing so, believed on reasonable grounds that the listed disclosing entity was complying with its obligations under that subsection. (3) For the purposes of the application of subsection (2) to a listed disclosing entity that is an undertaking to which interests in a registered scheme relate, the obligation of the entity to notify the market operator of information is an obligation of the responsible entity. (4) Nothing in subsection (2) is intended to affect or limit the situations in which action can be taken (otherwise than by way of a prosecution for an offence based on subsection (2)) in respect of a failure to comply with provisions referred to in subsection (1). Obligation to make provisions of listing rules available (5) If the listing rules of a listing market in relation to a listed disclosing entity contain provisions of a kind referred to in subsection (1), the market operator must ensure that those provisions are available, on reasonable terms, to: (a) the entity; or (b) if the entity is an undertaking to which interests in a registered scheme relate - the undertaking's responsible entity. The case sought to be made against Becton in paragraphs [40] to [48] proposes to plead the elements necessary to make out a cause of action. Paragraph [40] pleads that certain information (specifically identified in paragraph [39]) was information that a reasonable person would expect to have a material effect on the price of Becton's shares within the meaning of listing rule 3.1. Paragraph [41] alleges that Becton was aware of that information between 17 January 2007 and 28 November 2008 (within the meaning of the word "aware" for the purposes of listing rule 19.12). Paragraph [42] pleads that Becton was obliged to tell the ASX of the information referred to (namely, "the Taylorise information") pursuant to specifically identified obligations. Paragraph [43] pleads that the existence and terms of the Taylorise information was not generally available (within the meaning of s 674(2)) from 17 January 2007 to 28 November 2008 and, as pleaded by paragraph [44], that Becton was obliged to disclose the Taylorise information to the ASX shortly after 17 January 2006, but that, as pleaded in paragraph [45], Becton did not provide disclosure of the information between 17 January 2007 and 28 November 2008. The latter circumstance is pleaded as a specific, and second, breach of Becton's obligation under s 674(2) which, by paragraph [47], was said to be a continuing contravention until at least 28 November 2008. Paragraph [48] proposes to plead that Vaughan Super would not have purchased the shares in Becton had it known of the information which it alleges ought to have been disclosed and which it alleges was not disclosed. For these purposes Vaughan Super is particularised as being, in effect, an idiosyncratic purchaser. Becton is able to challenge each, or any, of these matters. It is able to contend, if so advised, that the information was disclosed or was otherwise available so as to defeat the claim sought to be made by Vaughan Super: see National Australia Bank Ltd v Pathways Investments Pty Ltd (2012) 265 FLR 247, [16]. It is similarly able to contend that the information was not relevantly material or that Vaughan Super was not induced by the failure to disclose information or that the failure did not cause the damage. 14 Becton also submitted that Vaughan Super's claim of causation was defective because it relied only upon the pleading that the loss would not have occurred "but for" the non-disclosure (see proposed pleading paragraphs [37] and [38]). Some claims of causation based solely upon "but for" reasoning may not be sufficient to establish a cause of action and will not succeed (see Hay v Victorian Securities Corporation Pty Ltd (2010) 29 VR 503, [87], [88]); but Vaughan Super's claim in this case is that the non-disclosure of the material was the cause of its purchase of the shares. A causal connection between conduct contravening provisions such as those alleged by Vaughan Super and the damage is fundamental: Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230, [61]. Neave JA explained in Hay that a "but for" plea may not be sufficient because it may fail to link the initiation of a train of events with the loss claimed. Her Honour said at [87]-[90]: [87] First, although the lender would not have made the loan but for the valuers' misrepresentations, the satisfaction of the "but for test" is not sufficient to establish that the loss was caused "by" the negligent conduct of the valuers. Although Alexander concerned causation at common law, the example discussed by Mahoney JA is apposite to the situation arising in this case. In a factual sense, the lender would not have suffered any loss if it had not entered into the transaction with the borrowers. However: If a defendant promises to direct me where I should go and, at a cross-roads, directs me to the left road rather than the right road, what happens to me on the left road is, in a sense, the result of what the defendant has done. If I slip on that road, if it collapses under me, or if, because I am there, a car driving down that road and not down the right road strikes me, my loss is, in a sense, the result of the fact that I have been directed to the left road and not the right road. But, in my opinion, it is not everything which is a result in this broad sense which is accepted as a result for this purpose in the law. Thus, if, being on the left road, I slip and fall, the fact alone that it was the defendant's direction, in breach of contract, which put me there will not, without more, make the defendant liable for my broken leg. I say "without more": if there be added to the breach the fact that, for example, the left road was known to be dangerous in that respect I may, of course, be liable. But, in relation to losses of that kind, the fact that the breach has initiated one train of events rather than another is not, or at least may not, be sufficient in itself. It is necessary, to determine whether there is a causal relationship, to look more closely at the breach and what (to use a neutral term) flowed from it. [88] True it is that the lender would not have suffered any loss if it had not made the loan. But the misrepresentations simply initiated a train of events, commencing with the making of the loan, and did not create a legally causal relationship between the loss caused by the damage to the properties and the making of the loan. The criminal damage could have occurred regardless of the valuers' negligent misstatement. [89] Secondly, as I have previously said, the legal context in which the right to recover damages arises must be taken into account in resolving causation issues. The purpose and policy of the TPA does not require a negligent valuer to be held liable for loss caused by the criminal acts of third parties, except in circumstances where the original breach increased the risk that those acts would occur. The damage suffered was not within the scope of the protection conferred by the TPA. [90] Thirdly, none of the authorities to which the court was referred supports the lender's claim for the whole of its loss. Although a broad approach has been taken to causation under s 82 of the TPA, the case law does not require valuers to be treated as insurers of the loan with liability for all losses which occur after a negligent misstatement of the value of the property is made. The reference to the 65% loan to value ratio in this case was not an undertaking that the properties would continue to be adequate security for the loan even if they were subsequently damaged by third parties. This would mean that a valuer who makes a misleading representation as to the value of the property would be liable for any occurrence, no matter how unusual, which later reduced its value. Such an approach would go well beyond the objects of the TPA. Vaughan Super's claim here however in that its purchase would not have occurred had Becton disclosed the material which Vaughan Super contends was not disclosed. The quantum of the loss claimed follows from the fact of Vaughan Super having purchased the shares rather than any other factor which might have affected the share price. It is conceivable that Becton may wish to defend the claim in part by pleading in defence that there was some supervening or other act which broke the causal link but the causal link claimed in this pleading is sufficient in its terms as a pleading. Vaughan Super will need to establish at trial that what caused it to purchase the shares in Becton was the cause of the loss, but the claim of causation is sufficiently stated in the proposed pleading and is sufficient for Becton to know what case it has to meet. What is pleaded by Vaughan Super does show "a logical relationship between the […] conduct [complained about] and the loss and damage said to have been suffered": cf Bond Corporation Pty Ltd v Thiess Construction Pty Ltd (1987) 14 FCR 215, 221-3. 15 Some of the other challenges made by Becton to the pleading are not, in my view, appropriate for determination in the context of a pleading dispute. Counsel for Becton, for example, submitted that I should form a view about whether the representations pleaded in paragraph [18] were capable of arising from the statements from which the representations were said to arise. It was also said, by way of further example, that there had been no logical connection established between the representation pleaded that Becton was the registered proprietor of the land and what was said to be the whole loss of value in 2013. It may be that Vaughan Super will not be able to establish the matters alleged at trial, or that, at trial, it will be found that the links alleged cannot be sustained on the evidence; but the case which Vaughan Super wishes to contend against Becton is sufficiently stated for Becton to know the case it has to meet and how it may choose to meet that case. The proposed pleading may, indeed, be narrower than Vaughan Super may subsequently find that it ought to be, but it is not of a kind that should not be given leave because the case pleaded has no prospect of success: cf QS Holdings Sarl v Paul's Retail Pty Ltd (2011) 92 IPR 460, [107]. Becton may elect to plead as one issue in its defence such matters as that the representations pleaded cannot support the loss claimed but, unless the resolution of an issue in a proceeding at an interlocutory stage is likely to dispose of the proceeding as a whole, it is not desirable to make findings on contested matters before trial. The impact of other evidence upon disputed issues should not be underestimated and care should be taken to ensure that pleadings disputes do not have the effect of splitting issues properly to be determined at trial. 16 Becton also contended that leave should not be granted as a matter of discretion because of the conduct of Vaughan Super and because adequate explanations had not been given for the substantial change in the pleading. It is true that the proposed pleading is, as far as Becton and Mr Macdonald are concerned, significantly different in form from the existing pleading and that the causes of action now sought to be raised are different causes of action from those in the existing pleading which is sought to be replaced. Those facts, however, are in part explained by the background and the earlier interlocutory dispute with Mr Beck and Mr Taylor. An entirely reformulated pleading was undertaken as part of the process of repleading the case against all of the then respondents (including Mr Beck and Mr Taylor before they had settled with Vaughan Super). Counsel for Vaughan Super relied upon what they understood to have been urged on them by the Court on 8 September 2014, namely that they should replead "afresh". The amendments, both as to form and content, are adequately explained by counsel in that way and cannot be seen as an attempt to resile from some forensic advantage which a party may have sought to gain: cf Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261, [51]-[52]. 17 Before September 2014 there had also been correspondence between the practitioners for Vaughan Super and Becton which is said to bear upon the exercise of the Court's discretion. On 3 March 2014 Vaughan Super had made its formal application for leave to amend the then existing pleading. Becton's practitioners then wrote to the practitioners for Vaughan Super setting out what were said to be deficiencies in the claims against Becton and invited Vaughan Super to deal with them at that stage in light of observations which the court had made about the desirability of resolving all pleading issues at the next hearing. At that stage, however, there were no pleading disputes before the Court between Becton and Vaughan Super and that fact had been stated to the Court at directions hearings by counsel for Becton. On 6 March 2014 Vaughan Super responded to Becton saying that the alleged defects could not be raised by Becton because the Court had ordered that any claims by Becton should be raised by 31 January 2014 and that none had been raised by Becton by that date. In those circumstances the letter on behalf of Vaughan Super had said that it did "not propose to [sic] further amend the statement of claim as a result of" the letter sent on behalf of Becton. On 13 March 2014 Becton responded stating, amongst other matters, that it would object to any application made to address the deficiencies which had been alleged in the 4 March 2014 letter after the applications which had been set down for hearing on 31 March 2014 had been determined. That position adopted by Vaughan Super and communicated to Becton is said to amount to a procedural election to which it should be bound and that, in any event, it constitutes conduct warranting a denial of leave to plead as proposed, as an exercise of the Court's discretion. 18 It was not until September 2014, after the decision of the interlocutory disputes, and after the change in Senior Counsel conducting the case for Vaughan Super, that the pleading against Becton was wholly recast. The focus of the interlocutory orders permitting Vaughan Super to seek leave to replead was upon the pleadings against Mr Beck, Mr Taylor and Mr Macdonald, but there was no restriction imposed upon any subsequent application which Vaughan Super might make for leave to file an amended statement of claim against all of the then respondents. There had been no adjudication of any kind in respect of the pleading against Becton and no occasion had yet arisen for the court to consider whether the pleading against Becton should, for any reason, not be permitted. The order that Becton challenge the then existing pleadings by 31 January 2014 was to ensure that all challenges to the then existing pleadings be heard together, and did not prevent Vaughan Super from seeking to replead its case upon the (at that time) unknown outcome of the interlocutory dispute with Mr Beck and Mr Taylor. 19 I accept the explanation proffered by counsel for Vaughan Super for the repleading against Becton and Mr Macdonald. The explanation given is consistent with the duties of parties and their representatives under section 37M of the Federal Court of Australia Act 1976 (Cth) to ensure that the real issues in dispute are adequately disclosed and are before the Court. The substitution of the causes of action is adequately explained. The fundamental case against Becton has not changed; that is to say, Vaughan Super continues to contend against Becton (and accessorily against Mr Macdonald) that it suffered loss and damage because of what was said by Becton and by what are alleged as failures to disclose matters before Vaughan Super acquired shares in Becton. Vaughan Super cannot be criticised for substituting the causes of action said to arise from its alleged complaints against Becton. The cause of action based upon s 1041H of the Corporations Act 2001 (Cth) is in substantially the same terms as the former claim under s 52 of the Trade Practices Act 1974 (Cth) but brought under the former provision because of the allegation that the conduct was in relation to a financial product or a financial service. For that reason counsel for Vaughan Super submitted that it followed that the complaints by Vaughan Super were not to be brought under the latter provision (see former s 51AF of the Trade Practices Act 1974 (Cth)) or under the comparable provisions of the Fair Trading Act 1987 (NSW) or the Fair Trading Act 1999 (Vic) (see Corporations Act 2001 (Cth), s 1041K). 20 Becton also contended that Vaughan Super should not be given leave to file the amended pleading because it said that Vaughan Super had made a "procedural election" in March 2014 from which it should not be allowed to resile. The basis of the election which Becton said had been made by Vaughan Super was the facts referred to above concerning the exchange of correspondence between the solicitors around 4 to 13 March 2014. I would not regard those events as a procedural election by Vaughan Super not to pursue its case against Becton and Mr Macdonald in the way it now seeks to pursue it in the proposed pleading but, if it were, I would allow Vaughan Super to resile from the election. 21 In Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Gummow, Hayne and Kiefel JJ said in a joint judgment at [60]: Circumstances in which there is an election between inconsistent rights are radically different from some others in which there is said to be a waiver of rights. In particular, it is important to distinguish cases of election between competing rights from the very different setting for this Court's last extended consideration of issues of "waiver" in The Commonwealth v Verwayen. In that case the Commonwealth obtained leave, belatedly, to amend its defence to plead a statute of limitations as an answer to the plaintiff's claim for damages for personal injury. In response to that plea, the plaintiff asserted that the Commonwealth had waived the limitations defence or was estopped from relying upon it. This Court divided in opinion about whether the Commonwealth could rely on the limitations defence. The majority of the Court (Deane, Dawson, Toohey and Gaudron JJ) held that the Commonwealth was not free to dispute its liability to the plaintiff. Deane J and Dawson J each rested that conclusion in estoppel; Toohey J and Gaudron J each concluded that the Commonwealth had waived its right to rely on a limitations defence. But the conclusions reached by both Toohey J and Gaudron J about waiver depended upon considerations founded in the nature of the adversarial litigious process. So Gaudron J said that "a party to litigation will be held to a position previously taken (that position having been intentionally taken with knowledge) if, as a result of that earlier position, the relationship of the parties has changed". And as her Honour pointed out, the roots of the doctrine applied in her decision were to be identified in "fair dealing in the conduct of litigation [and] promoting the finality of litigation". Likewise, Toohey J emphasised that the "waiver" at issue in Verwayen was "waiver as it exists within the adjudicative process" (emphasis added) and that "[w]ithin the adjudicative process at any rate, it is enough that the defendant 'renounces' a defence which is available to him and which is there for his benefit". It was on this footing that both Toohey J and Gaudron J concluded that the Commonwealth had waived the right to plead a limitations defence. [Footnotes omitted.] In Renowden v McMullin (1970) 123 CLR 584 Owen J said at 608-609: At the date of the summons for leave to amend, the claims based upon contract, had a writ then been issued, would have been barred by the Limitation of Actions Act 1958 (Vict.) and it was for this reason that the Full Court, applying the well-known and oft applied passage in the judgment of Lord Esher in Weldon v. Neal, refused to allow the amendments. In that case his Lordship had said: "We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so." In my opinion their Honours were right in thinking that in the light of O. 20, r. 2, and of a number of authorities to which they referred, it was to the statement of claim that regard should be had in determining what were the claims which the plaintiff wished to litigate although, if no question of the Limitation of Actions Act had arisen, it might well have been that the amendments sought would have been granted. But I agree with their Honours that in a case in which an amendment to a statement of claim is sought which raises a cause of action of a kind different to that which is alleged in the statement of claim and it appears that at the date when the amendment is sought that cause of action would be statute barred if a writ were then issued, the amendment should not be allowed except perhaps in what Lord Esher had described as "very peculiar circumstances" and no one has suggested that any such circumstances existed in the present case. The reasons which led their Honours to refuse the proposed amendment were that although the indorsements on a writ may be wide enough to cover a number of causes of action, if the statement of claim omits to rely upon one of them the cause of action so omitted is to be taken to have been abandoned; and if in such circumstances the plaintiff later seeks the leave of the Court to amend his statement of claim in order to re-introduce into the proceedings the cause of action which he has thus abandoned he will not, except in "very peculiar" circumstances, be allowed to do so if, at the date when he seeks to re-introduce it, a writ issued in respect of that cause of action would have been statute barred. [Footnote omitted.] It is not insignificant that the issues considered in these passages arose in the context of whether there had been an election to abandon a cause of action that had become statute barred at the time that a party subsequently sought to rely upon them. This proceeding is not the occasion to consider whether the observations in Renowden depend upon the circumstances considered in Weldon v Neal (1887) 19 QBD 394 because, as the parties correctly agreed, the Court retains a discretion about whether Vaughan Super should be bound by an election if one had been made. Other considerations may arise in the context of positions taken by a party as between inconsistent rights (see Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230), or of positions taken (or to be assumed to be abandoned) during the conduct of a trial, but the case Vaughan Super seeks to bring against Becton is essentially the same complaint as in the existing pleading but based upon different, and arguably more appropriate, statutory provisions. 22 The final matter to consider is the claim by Becton for judgment in respect of the claims which Becton contended Vaughan Super has abandoned. Vaughan Super maintains that it is not accurate to describe its substitution of claims as an abandonment of the claims not pursued, although it accepts, correctly, that it will not be able to pursue those claims after judgment in this proceeding: Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589. Counsel for Becton contended that it is entitled to have judgment on those claims in part because it would have been entitled to the costs of the claims if there had been a formal discontinuance of those claims as provided by the rules, and that it should not continue to be at risk in respect of those claims. Neither reason requires that judgment be given at this stage of the proceeding. Whether or not, and if so the extent to which, Vaughan Super should pay the costs of Becton for the claims no longer pursued is something that can be dealt with as a discrete question about who should pay costs. Whether Becton should be entitled to its costs can be determined in an application directed to that specific issue with matters raised, and confined to, that question without the collateral difficulties that may arise about unknown or unintended consequences of judgment on part of a claim without adjudication on the merits and which, if judgment is granted, may impinge upon the claim as it may otherwise proceed. The fact that Becton may still be at risk of Vaughan Super seeking to revive the claims which are no longer pursued is something that is not solely in the control of Vaughan Super in a judge managed case or under the Federal Court Rules 2011 (Cth). Any reintroduction of causes of action not presently pursued will require the leave of the Court and any risk to Becton can, in any event, adequately be dealt with in the context of applications of abuse of process if the question of revising claims arises and a case of abuse can be established. In my view, in this case, it is inappropriate to give judgment without adjudicating on the merits: see Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (2005) 21 BCL 12, [141]-[142], [146], [154], [151]; Pertsinidis v Australian Central Credit Union (2001) 80 SASR 76, [46], [49], [101]. It was also said in written submissions for Becton that it was unfair to deprive "the defendants" (meaning, presumably, the corporation Becton) of the benefit of judgment on the abandoned claims being "fraud like claims" which "called into question the defendants' character". However, there was not shown to be sufficient basis in this case to warrant acceptance of that submission. 23 Accordingly, leave will be given to Vaughan Super to file and serve the proposed further amended statement of claim as amended in the particulars to paragraph [23] by the letter dated 2 December 2014. The application by Becton will be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.

J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Pty Ltd

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