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[2003] VSC 282
procedural. Specified paragraphs of the Anghie and Higgs, Pelly, and Murphy third-party statements of claim were struck out with leave to replead. The court rejected Hall Chadwick’s causal-connection...
This was a procedural decision, not a trial of the takeover dispute or a final ruling on whether Hall Chadwick was liable. Byrne J applied a demanding strike-out threshold. Some pleaded duties of care were removed because the facts alleged did not explain how the accountant’s conduct could give rise to the duties claimed by the directors or the shareholder company. The misleading-conduct claim was not dismissed on the argument that the report was outside trade or commerce, but the pleading had to say more specifically how particular statements were relied on. The contribution claim remained for later argument. The affected parties were given leave to replead.
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2,520 words · generated 01/10/2026
This judgment concerns a procedural dispute within a larger takeover-related proceeding. Liquorland and Australian Liquor Group (ALG) alleged that ALG’s financial position was misstated or insufficiently disclosed around Liquorland’s 2001 takeover, so that Liquorland paid too much for ALG shares ([5]). The underlying proceeding involved claims against ALG’s directors and other parties. The issue before Byrne J was narrower: whether certain third-party claims against Hall Chadwick, ALG’s auditor and accounting reviewer, should be struck out.
No linked legislation citations have been extracted yet.
The pleaded chronology placed Hall Chadwick’s work in the months before and during the takeover. ALG appointed Hall Chadwick as auditor in November 2000. In January 2001, ALG retained it to review the half-year financial report, and Hall Chadwick supplied its independent review report on 17 March. ALG retained Hall Chadwick for a systems review in April. Liquorland announced its intended offer on 27 April, lodged its bidder’s statement on 1 May, and made a formal offer on 14 May. Hall Chadwick provided a closing report on 17 May. The offer became unconditional on 19 June, and Hall Chadwick delivered its systems review report on 31 July ([90]).
The defendants who brought the third-party claims alleged, in broad terms, that Hall Chadwick’s March review report painted an inaccurately favourable picture of ALG’s accounts and that later accounting-system concerns were not communicated in time. They pleaded claims in negligence, under the Western Australian Fair Trading Act, and for contribution ([108]–[123]). At this stage, those allegations were not findings of fact.
Hall Chadwick applied to strike out claims brought by Anghie and Higgs, Pelly, and Murphy and Murphy Investments. The EY parties had also applied to strike out claims against them, but the plaintiffs later joined them as defendants and the EY parties did not pursue their application ([34], [40]). Byrne J heard Hall Chadwick’s application on the pleadings as amended by the plaintiffs.
The result was mixed. The judge rejected Hall Chadwick’s argument that the third-party claims necessarily failed for lack of causal connection. Some pleaded duties of care and reliance allegations were struck out, with leave to replead. The court did not strike out the misleading-conduct claim merely because the report might not have been conduct in trade or commerce. It also left the contribution claim for full argument rather than deciding its disputed elements on the strike-out application ([153], [192], [212], [219], [241], [246]).
The starting point was the strike-out standard. The court would not strike out a claim unless it was “plainly hopeless”; if a pleading was defective only in form, the pleader should be allowed to replead. The court also treated pleaded allegations as provable and drew inferences available to the pleading party ([43]). That approach shaped the difference between issues the judge considered suitable for decision on the pleadings and issues left for trial or fuller argument.
Hall Chadwick’s causal argument was that if the plaintiffs succeeded against the directors, that success would depend on proof that the directors knew the true financial position. On Hall Chadwick’s case, such knowledge would defeat the directors’ contention that they had relied on, or were misled by, Hall Chadwick’s work. Conversely, if the plaintiffs could not prove that knowledge, the directors would not suffer the relevant liability or loss ([141]). Byrne J did not accept that this outcome was inevitable. The plaintiffs’ amended pleading included allegations not requiring proof of actual knowledge, and the judge took account of the possibility of further amendments. The judge was also concerned that striking out the third-party claims might prejudice the directors if the plaintiffs later changed their case ([144], [147]). The causal objection therefore failed at this procedural stage ([153]).
The duty-of-care claims were treated differently. The directors relied on their statutory responsibilities concerning ALG’s financial reporting and continuous disclosure, and on the possibility of personal liability for corporate contraventions. The judge accepted that there might be an argument that directors, in their statutory role in preparing and submitting the relevant report, stood in a special position. The court would not reject that argument as having insufficient prospect of success to justify striking out the pleading about the independent review statements ([160]). But the claims about Hall Chadwick’s conduct of the reviews and preparation of the report had a different problem. The pleading identified potential liability for acts of ALG, but did not explain how those acts were or were likely to be affected by Hall Chadwick’s allegedly negligent review work ([183]). The judge could see no prospect that the pleaded facts supported those duties, and struck out the relevant paragraphs ([192]).
For Murphy Investments, the pleaded basis was weaker still. Its interest was that of a shareholder, and the pleading offered only a bare assertion that loss was foreseeable. The court struck out the duty claim on that basis. It also observed that the allegations about directors’ responsibilities and involvement in ALG’s affairs did not involve Murphy Investments ([195], [198]).
The statutory misleading-conduct claim survived the particular trade-or-commerce objection. Hall Chadwick argued that the report was not conduct with a trading or commercial character, relying on the distinction between commercial conduct and conduct occurring against a commercial background. The judge considered the competing arguments and concluded only that the claim was not hopeless on this ground. The court did not finally decide whether the report was conduct in trade or commerce ([206]–[212]).
The reliance pleading failed for a more specific reason. It described events that would or would not have happened if the report had not been made, but left the connection to reliance implicit. The judge required the pleading to identify the particular statements relied on, the actions taken because of them, and the detriment. That specificity mattered because the plaintiffs alleged different contraventions at different times, and different directors might have had different information ([216]). The relevant paragraphs were struck out in their existing form ([219]).
Finally, the contribution claim raised questions about whether ALG had suffered damage and whether the damage caused by the alleged wrongdoing of the directors and Hall Chadwick was the same. The judge considered that the amount recoverable by ALG under the insider-trading provision appeared to be directed to disgorging improper profit rather than compensating ALG. But the court was not satisfied that those questions should be decided summarily. It left them for full argument in light of the trial facts ([232]–[241]).
The judgment does not purport to establish a comprehensive new test for auditors’ duties, economic loss, trade or commerce, or statutory contribution. It applies a procedural standard to the pleadings before it. The most direct statement of the applicable threshold is at [43]: a third-party claim should not be struck out unless it is plainly hopeless, and a defect of form may be addressed by repleading.
Before this decision, as reflected in the authorities and arguments cited in the judgment, the parties disputed how far an auditor’s duty for pure economic loss could extend to directors or shareholders of a client company. Byrne J noted that reasonable foreseeability alone was accepted as insufficient, without more, to impose liability on an auditor to a third party, and referred to Esanda Finance Corporation Ltd v Peat Marwick Hungerfords ([160]). The judgment did not resolve the outer limits of that duty. Instead, it held that some pleaded facts did not connect the review conduct to the particular liability said to have been suffered.
The judgment also addressed the meaning of “trade or commerce” in the context of professional reporting. It discussed Concrete Constructions (NSW) Pty Ltd v Nelson and Chapman v Luminis Pty Ltd (No 5), while recording the defendants’ argument that it would be wrong to infer a general exclusion for professional advice or reports ([206]–[209]). Its ruling was limited: the statutory claim was not hopeless on the trade-or-commerce point ([212]). It did not settle the issue for trial.
The clearest practical pleading proposition in the decision concerns reliance. The court required reliance to be specifically pleaded rather than left to inference from a list of events that allegedly would have occurred differently ([216]). The judgment thus illustrates how a claim can survive a broad legal objection while still require more precise pleading of its causal particulars.
After the ruling, the affected defendants had leave to replead the paragraphs struck out. The contribution issue remained open, as did the ultimate factual and legal merits of the takeover claims and the claims against Hall Chadwick ([241], [246]). The judgment itself provides no account of later decisions or subsequent treatment of its reasoning.
At [43], Byrne J stated that claims should not be struck out unless “plainly hopeless”. In plain English, a strike-out hearing is not ordinarily a mini-trial. If the pleaded case could work on facts assumed to be provable, it should generally remain, although a court can remove a claim that has no viable foundation.
At [147], the judge said he could not be satisfied that the plaintiffs “must inevitably fail” against the directors if they could not prove actual knowledge. This explains why the third-party claims did not fall simply because Hall Chadwick argued that the main claims depended on the directors’ knowledge. The amended plaintiffs’ case was broader, and could change further.
At [192], the judge said he could see “no prospect that the facts alleged could support the duty” in the review-conduct claims. This was a pleading conclusion about the facts alleged, not a finding that Hall Chadwick had acted properly or that no duty could ever exist in any other factual setting.
At [212], the court held that the misleading-conduct plea was “not hopeless” on the trade-or-commerce objection. That is deliberately narrower than a final decision that the conduct was in trade or commerce. The point remained unresolved for a fuller determination.
At [216], Byrne J said reliance “must be specifically pleaded”. The pleading needed to identify what statement a party relied on and how that reliance led to a particular action and detriment. A general account of events was not enough.
At [241], the judge preferred to leave the contribution questions for “full argument” in light of the emerging facts. The court therefore made no final determination about whether the statutory amount claimed by ALG represented damage, or whether it was the same damage as that alleged against Hall Chadwick.
The decision is most directly relevant to interlocutory strike-out applications involving third-party claims linked to a company’s financial statements, audit work, or takeover disclosures. Its procedural approach is especially relevant where the applicant argues that the pleaded claim cannot succeed under any possible view of the facts. The court’s response at [43] and [147] shows the importance of distinguishing an argument about the ultimate proof from a demonstration that the pleading is plainly hopeless.
For negligence claims against accountants or auditors, the decision highlights the need to connect the professional work to the claimant’s particular exposure or loss. The directors’ statutory responsibilities were part of their argument, but the review-conduct pleading did not explain how Hall Chadwick’s work affected the acts for which the directors might be liable ([183]–[192]). The decision also shows that a company director and a shareholder may stand differently for pleading purposes. Murphy Investments’ shareholder interest, without more, and its pleaded foreseeability allegation did not support the duty asserted ([195]).
For misleading-conduct claims, the decision is relevant where the allegedly misleading material is a professional report prepared for a company in a commercial setting. The court did not decide that such reports are necessarily inside or outside “trade or commerce”. It held only that the claim was not plainly hopeless on the point ([206]–[212]). The judgment therefore signals an issue for legal analysis, not a categorical rule.
For reliance, the case is relevant where a pleading lists things that allegedly would have happened if a statement had not been made, but does not state the actual reliance pathway. The judgment calls for the relevant statement, action, and detriment to be identified, especially where multiple claimants, times, and information states are involved ([216]).
For contribution claims, it is relevant where the claimant must establish that damage caused by two alleged wrongdoers is the same damage. The judgment demonstrates judicial caution where the statutory basis of one claim may be disgorgement rather than compensation, and the overlap cannot be resolved without fuller factual argument ([232]–[241]).
The supplied judgment does not identify any later court decisions applying, distinguishing, or questioning Liquorland (Australia) Pty Ltd v Anghie (No 5). It therefore does not support a conclusion about how later courts have treated the decision.
The cases the judgment itself discusses are earlier authorities, not later treatment of this judgment. Byrne J referred to General Steel Industries Inc v Commissioner for Railways (NSW) when stating the strike-out approach ([43]); to Esanda Finance Corporation Ltd v Peat Marwick Hungerfords in the economic-loss discussion ([160]); and to Concrete Constructions and Chapman v Luminis on trade or commerce ([206]). The judgment also referred to Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd for the requirement to plead reliance specifically ([216]).
On the source provided, the safe account is that this decision applied those authorities or considered the arguments based on them in the context of the particular pleadings. The text supplied does not establish any later precedential history.
Several questions were expressly left unresolved. First, the court did not decide whether the March independent review report was conduct in trade or commerce for the purposes of the Western Australian Fair Trading Act. It held that the claim was not hopeless on the argument advanced, leaving final resolution for later ([212]).
Second, the judgment did not define the full scope of an auditor’s duty of care to directors for economic loss. It noted the uncertainty in that area and the parties’ acceptance that foreseeability alone was not enough, but did not determine the boundary of any duty ([160], [192]). The director-focused argument based on their statutory role was not rejected as hopeless for the independent review statements, while other review-conduct duty claims were struck out because of gaps in the pleaded connection ([160], [183]–[192]).
Third, the contribution claim remained open. The court expressed doubt about whether ALG’s claim under s. 1013(5) was a claim for damage suffered by ALG, describing it as apparently directed to disgorgement of profit. It also left open whether the relevant damages were the same ([232]–[241]). The judge deliberately did not decide these points on the strike-out application.
Finally, the judgment gave leave to replead the paragraphs struck out. It did not determine what amended pleadings would be filed, whether they would cure the identified defects, or what findings would be made at trial. The disposition was procedural and should not be read as a final determination of liability in the underlying takeover dispute ([246]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
[2003] VSC 282
PRACTICE AND PROCEDURE - pleading - third party statement of claim - strike out application - whether claim futile - whether third party claim arises in the event that plaintiffs successful - whether accountants retained by company owe duty of care to directors and shareholders - whether accountant's misleading and deceptive advice is "in trade or commerce" - reliance - discretion.
For the first and thirdnamed Defendants (Anghie and Higgs)
For the fifth and sixthnamed Defendants (Murphy and Murphy Investments)
For the seventh and eighthnamed Defendants and eleventh and twelfthnamed third parties (Ernst & Young and Ernst & Young Corporate Finances)
For the fifth to tenthnamed Third Parties (Hall Chadwick)
(a) The first to fourthnamed third parties, Roger Christian Steinepreis, David Arthur Paganin, Mark Phillip Scudamore Foster and Jonathan Heath Stuart Murray who were at the relevant time members of the firm of solicitors, Steinepreis Paganin, retained by ALG and the directors to advise them on matters connected with any acquisition of shares in ALG by Liquorland.
(b) The fifth to tenthnamed third parties, Rave Ravendran, Kimberley Andrew Strickland, Keith Robert Cook, Maurice Lee Anghie, Terrence Charles Posma and Christopher Michael Williamson who were at the time members of the firm of accountants, Hall Chadwick, who carried on practice as such in Western Australia. Hall Chadwick was the auditor of ALG and was retained by it in 2001 to carry out certain accounting reviews. So much appears from the third party statement of claim[3] to which I shall return.
(c) The thirteenthnamed third party, Craig Watkins, who was at all relevant times a director and general manager of Liquorland. It is said that Mr Watkins was privy to certain information regarding the true financial position of ALG at the time of the takeover.
(a) The fifth to tenthnamed third parties, the members of the firm Hall Chadwick.
(b) The EY parties.
(c) Mr Watkins.
* The application by Hall Chadwick to strike out the third party claims made against them by Anghie and Higgs, by Pelly and by Murphy and Murphy Investments is brought by summons filed on 24 February 2003.
* The application by the EY parties to strike out the third party claims made against them by Oakley, Pelly, Murphy and Murphy Investments is brought by amended summons filed on 26 March 2003.
* The application by the EY parties is no longer pressed since the EY parties are now involved in the proceeding as defendants.
* The defendants Oakley, Pelly, Murphy and Murphy Investments propose to bring their former third party claims against the EY parties as claims between defendants. These claims have not been filed.
* The further amendments to the plaintiffs' statement of claim have had the consequence of undermining some of the arguments upon which were based the applications to strike out the third party statements of claim.
17 April 2001 - Liquorland acquired 8M fully paid shares in ALG, representing an 18% interest.
27 April 2001 - Coles Myer Ltd publicly announced that its wholly owned subsidiary, Liquorland, intended to make a cash offer for all of the shares in ALG.
1 May 2001 - Liquorland lodged its bidder's statement with the ASIC pursuant to s. 636 of the Corporations Law ("the Law").
4 May 2001 - ALG lodged with ASIC its Target's Statement pursuant to s. 638.
14 May 2001 - Liquorland made a formal conditional offer to purchase all of the ALG shares for $1.20 cash per share.
17 May 2001 - ALG was made aware of its accounting deficiencies following receipt of Hall Chadwick's closing report.
1 June 2001 - ALG was aware of further deficiencies in the accounting systems following the tabling of a further report by Hall Chadwick at its board meeting of that date.
19 June 2001 - at 3.00 pm Liquorland declared its offer unconditional. This offer was accepted by the defendants other than Oakley.
18 July 2001 - Liquorland paid the offer price to all accepting shareholders except for the defendants and Christine Oakley.
November 2000: Hall Chadwick appointed auditor of ALG.
29 January 2001: ALG retained Hall Chadwick to conduct an independent review of ALG's Appendix 4B financial report for the half year ended 31 December 2000 and to provide an Independent review report.
17 March 2001: Hall Chadwick provided the independent review report to the members of ALG.
18 or 19 March 2001: ALG lodged with ASX its Appendix 4B Report.
10 April 2001: ALG retained Hall Chadwick to undertake a systems review, that is, a review of ALG's accounting systems and to report on these.
27 April 2001: Coles Myer Ltd publicly announced that its wholly owned subsidiary, Liquorland, intended to make a cash offer for all of the shares of ALG.
1 May 2001: Liquorland lodged its bidder's statement with ASIC pursuant to s. 636.
4 May 2001: ALG lodged with ASIC its Target's Statement pursuant to s. 638 of the Law.
14 May 2001: Liquorland made a formal conditional offer to purchase all of the ALG shares for $1.20 cash per share.
17 May 2001: Hall Chadwick provided to the ALG Audit Committee a closing report on its independent review of the Appendix 4B Report.
19 June 2001: Liquorland offer became unconditional.
31 July 2001: Hall Chadwick provided to ALG, now a wholly owned subsidiary of Liquorland, its systems review report.
(a) the Corporations Law, including:
(i) giving a true and fair view of the consolidated entity's financial position as at 31 December 2000 and of its performance for the half-year ended 31 December 2000; and
(ii) complying with Accounting Standard AASB 1029: Half-Year Accounts and Consolidated Accounts and the Corporations Regulations; and
(b) other mandatory professional reporting requirements and ASX Listing Rules as they relate to Appendix 4B[26].
These conclusions are alleged to be incorrect, and negligently so[27]. They are referred to in the pleading and in the judgment as the independent review statements. Further, it is said that, by May or early June 2001 in the course of preparing the system's review report, Hall Chadwick became aware of certain deficiencies in ALG's accounting systems but did not bring them to the attention of ALG or its directors[28].
(i) A breach of a common law duty owed to ALG to take reasonable care to ensure the correctness and accuracy of the independent review report statements[35].
(ii) A breach of a common law duty owed to the directors to take reasonable care to ensure the correctness and accuracy of independent review report statements[36].
(iii) A breach of an implied contractual duty owed to ALG to carry out the independent review and to prepare the independent review report with due care and skill[37].
(iv) A breach of a common law duty owed to ALG to exercise due care and skill in conducting the independent review and in preparing the independent review report[38].
(v) A breach of an implied contractual duty owed to ALG to exercise due care and skill in conducting the systems review[39].
(vi) A breach of a common law duty owed to ALG to exercise due care and skill in conducting the systems review[40].
(vii) Insofar as the breaches by Hall Chadwick of the common law duties and contractual duties owed to ALG referred to in paragraphs (i), (iii), (iv), (v), (vi) and (vii) caused ALG to commit contraventions of the law as a result of which the directors are liable to compensate Liquorland, it is claimed that Hall Chadwick owed to those directors a common law duty of care. Accordingly, it is said that Hall Chadwick breached this duty in its conduct of the independent review and in preparing the independent review report and in conducting the systems review[41].
(viii) A contravention of s. 10 of the Fair Trading Act 1989 (WA) inasmuch as the statements contained in the independent review report constituted misleading and deceptive conduct upon which ALG and the directors relied to their detriment[42].
(ix) A claim for contribution pursuant to 23B of the Wrongs Act 1958 on the basis that the damage alleged in paragraph 42 of the plaintiffs' statement of claim
to have been suffered by ALG is the same damage as that which would have been suffered by it as a result of the breaches and contraventions by Hall Chadwick which I have summarised in (i), (iii), (iv), (v) and (vi) and (viii) above[45]. This is the amount which ALG claims to be entitled pursuant to s. 1005(1) and s. 1013(5) to recover from the directors, other than Oakley, and from Murphy Investments.
(x) In terms similar to that summarised in (iv) and (v) of the preceding paragraph, it is alleged that Hall Chadwick owed to Murphy Investments a common law duty to exercise due care and skill in conducting the independent review, in preparing the independent review report and in conducting the systems review[46]. Breaches of this duty are alleged in paragraphs 45 and 51(c) of the third party statement of claim. The consequential loss alleged is the exposure of Murphy Investments to the action by Liquorland and ALG for damages and for the costs of defending that action[47]. It should be noted in this respect that the only claims made by the plaintiffs against Murphy Investments arise out of its contraventions of the insider trading provisions of the law. Relief of various kinds is sought as a consequence of these contraventions of which most[48], if not all, are not claims for damages.
(xi) In terms similar to that summarised in (ix) of the preceding paragraph, Murphy Investments seeks contribution pursuant to s. 23B of the Wrongs Act 1958[49].
THE HALL CHADWICK STRIKE OUT CONTENTIONS
"32. Accordingly, it was reasonably foreseeable to Hall Chadwick that : ... (b) [The directors] would reasonably rely on the independent review Statements in discharging their duties as directors of ALG, in particular in relation to the Appendix 4B Report and their general obligations of disclosure of ALG's financial position; (c) ALG and [the directors] could suffer loss and damage in acting in reliance on the independent review Statements if those statements were incorrect."
I was referred to cases such as Esanda Finance Corporation Ltd v Peat Marwick Hungerfords[56] in support of the proposition that the liability for economic loss suffered by reason of misstatements is now confined within narrow limits. What those limits are may be a matter for full argument at trial in the light of the facts as they emerge. It was put on behalf of Hall Chadwick, and accepted by counsel for the directors, that reasonable foreseeability of the risk of harm to a third party is insufficient without more to impose liability upon an auditor in making a report to a client company. Nevertheless, it was put by counsel in support of the third party statements of claim that the directors in this case may well be in a special position given their statutory role in preparing and submitting the Appendix 4B Report. He submitted that the court would not strike out an allegation that Hall Chadwick owed a common law duty of care to ALG in providing information for such a report. It was, he contended, a small step to admit such a plea by those natural persons through whom ALG must and did act and who were by statute equally liable for erroneous statements in such a report. I will not reject such an argument as lacking sufficient prospect of success to warrant the striking out of the pleading.
(a) Section 79 and s. 670B(1) Item 11 and Fair Trading Act 1999 (Vic) s. 159. These impose accessorial liability upon a person involved in a contravention by another person, perhaps ALG in this case.
(b) 670B(1) Item 7. Again, the director is here liable for the incorrect statements made by the company unless the director proves that he did not know the statement was misleading and deceptive or that there was an omission from the statement or that they placed reasonable reliance upon information obtained from another.
(c) Section 1002G(2), 1005(1). These provisions relate to the trading in shares by an insider. They do not attach to directors as such. They do not impose any liability upon the directors for the acts of ALG; liability is imposed for their own acts.
(d) Section 1013(5). This provision likewise forms part of the insider trading regime. As pleaded, it is said that this section permits ALG itself to recover from the insiders the profit which they made from their insider sale of ALG shares. It is difficult to see here a circumstance in which the insider, be they a director or not, is personally liable for any act of ALG.
(a) ALG suffered damage by the wrongful act of the directors and Murphy Investments; and
(b) ALG suffered damage by the wrongful act of Hall Chadwick; and
(c) The damage in each case was the same damage.
Two contentions were advanced on behalf of Hall Chadwick in support of a submission that this claim was hopeless and should therefore be struck out.
(a) Anghie and Higgs third party statement of claim paragraphs 38-42 and those dependent upon these, and paragraphs 52, 53 and 54(c).
(b) Pelly third party statement of claim paragraphs 37-40 and those dependent upon these, and paragraphs 50, 51 and 52(c).
(c) Murphy third party statement of claim paragraphs 33, 38-42 and those dependent upon these, and paragraphs 52, 53 and 54(c).
I will hear counsel as to the precise orders to be made to give effect to these conclusions and as to costs.
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[1] This Mr Anghie is not to be confused with the eighthnamed third party, Maurice Lee Anghie, who was at the relevant time a member of the firm Hall Chadwick. In this judgment references to "Anghie" are to the firstnamed defendant.
[2] Fourth amended statement of claim filed on 15 May 2003 ("plaintiffs' statement of claim").
[3] Third party statement of claim filed on 18 February 2003.
[4] Second amended third party statement of claim filed 8 April 2003.
[5] Third party statement of claim filed 5 December 2002.
[6] Third party statement of claim filed 14 March 2003.
[7] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129, per Barwick CJ.
[8] Plaintiffs' statement of claim para 9A.
[9] Plaintiffs' statement of claim para 11.
[10] Plaintiffs' statement of claim para 24J.
[11] Plaintiffs' statement of claim para 24L.
[12] All references to sections in this judgment are references to the Corporations Law unless otherwise indicated.
[14] Plaintiffs' statement of claim para 24A.
[16] Plaintiffs' statement of claim paras 26-33.
[17] Plaintiffs' statement of claim para 39.
[18] Plaintiffs' statement of claim para 40.
[19] Plaintiffs' statement of claim para 42.
[20] Plaintiffs' statement of claim paras 43, 44 and 44A.
[22] The equivalent s. 75B(1) of the Trade Practices Act 1974 was so construed in Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 at 670.
[23] Anghie and Higgs Amended third party statement of claim filed 18 February 2003, Pelly third party statement of claim filed 5 December 2002, Murphy amended third party statement of claim filed 14 March 2003.
[24] A significant dissimilarity is the omission from the Pelly third party statement of claim of an allegation equivalent to that contained in para 40 of the other third party statements of claim.
[25] The paragraph numbers of the Pelly third party statement of claim vary from those of the other third party statements of claim.
[26] Third party statements of claim para 7. Pelly third party statement of claim para 6.
[27] Third party statements of claim paras 44, 47. Pelly third party statement of claim paras 42, 45.
[28] Third party statements of claim para 51. Pelly third party statement of claim para 49.
[29] Third party statements of claim para 16. Pelly third party statement of claim para 15.
[30] Plaintiffs' statement of claim para 30(d).
[31] Third party statements of claim para 22. Pelly third party statement of claim para 21.
[32] Third party statements of claim para 54(d), (f). Pelly third party statement of claim para 52(d)(f).
[33] Third party statements of claim para 49. Pelly third party statement of claim para 47.
[34] Third party statements of claim para 51. Pelly third party statement of claim para 49.
[35] Third party statements of claim para 33, 47(c). Pelly third party statement of claim para 32. No breach of this duty is in terms alleged.
[36] Third party statements of claim paras 33, 47(c). Pelly third party statement of claim paras 32, 45(c). I overlook an evident typographical error in the Murphy third party statement of claim para 47(c).
[37] Third party statements of claim para 34, 47(b). Pelly third party statement of claim paras 33, 45(b).
[38] Third party statements of claim para 35, 47(a). Pelly third party statement of claim paras 34, 45(a).
[39] Third party statements of claim para 36.
[40] Third party statements of claim para 37.
[41] Third party statements of claim paras 42, 47(c). Pelly third party statement of claim paras 40, 45(c), 49(c). Again I pass over the evident typographical error in the Murphy third party statement of claim para 47(c).
[42] Third party statements of claim para 53.
[43] Third party statements of claim para 59. Pelly third party statement of claim para 57.
45] Third party statements of claim para 58. Pelly third party statement of claim para 56.
[46] Murphy third party statement of claim para 42.
[47] Murphy third party statement of claim para 56.
[48] The possible exception is the claim made by Liquorland pursuant to s. 1005(1) and by ALG pursuant to s. 1013(5) in paragraph 4 of the plaintiffs' statement of claim.
[49] Plaintiffs' statement of claim paras 40, 42, 43, 44, and 44A.
[50] Plaintiffs' fourth statement of claim para 9A.
[51] Plaintiffs' fourth statement of claim para 11.
[52] See for example the plaintiffs' fourth statement of claim paras 22, 34 and 37A.
[53] Plaintiffs' fourth statement of claim para 30B.
[54] Pelly third party statement of claim paras 25-31.
[55] Pelly third party statement of claim para 31.
[57] This pleading does not contain an equivalent of paragraph 40 of the other third party statements of claim.
[58] Pelly third party statement of claim para 39.
[59] Pelly third party statement of claim para 39(a).
[60] Third party statements of claim para 46(a)(b)(c)(d) and (f). Pelly third party statement of claim para 44(a)(b)(c)(d) and (f).
[61] Pelly third party statement of claim para 44(e).
[62] Third party statements of claim para 49. Pelly third party statement of claim para 47.
[63] (1992) 30 NSWLR 1 at [5].
[66] [2001] FCA 1106 at [178].
[67] Pelly third party statement of claim para 52.
[68] [1987] FCA 84; (1987) 14 FCR 215 at 222, per French J.
[69] Pelly third party statement of claim paras 50, 51 and 52(c).
[70] Pelly third party statement of claim paras 56 and 57.
[71] Plaintiffs' statements of claim para 42.
[72] Pelly third party statement of claim para 55.
Liquorland (Australia) Pty Ltd
Anghie
(1964) 112 CLR 125
(1985) 158 CLR 661
(1997) 188 CLR 241
(1992) 30 NSWLR 1
(1990) 169 CLR 594
(1987) 14 FCR 215
Specified paragraphs of the Anghie and Higgs, Pelly, and Murphy third-party statements of claim were struck out with leave to replead. The court rejected Hall Chadwick’s causal-connection contention, held the trade-or-commerce contention did not make the claim hopeless, required specific pleading of reliance, and declined to strike out the contribution claim. The precise orders and costs were to be addressed after judgment ([153], [192], [195], [198], [212], [219], [241], [246]).