Plaintiff v Defendant [2025] VSC 580 | Case summary

Supreme Court of Victoria|2025-09-12|Before: Delany J

For the reasons previously discussed, the proposed amendments in the 2FASOC that plead New York law, that allege failure to consult and also proposed paragraph 129.A.7 are allowed. Leave to amend to allege the defendants acted as de facto and/or shadow directors and to allege breaches of directors duties is refused.
The plaintiffs should circulate a revised proposed second further amended statement of claim that incorporates the permitted proposed amendments and that addresses the four issues discussed in paragraphs 13-16 of these reasons in a manner consistent with those paragraphs of the reasons by no later than 4:00pm on 25 September 2025.
By no later than 4:00pm on 3 October 2025 the Lenders and COFACE should notify the plaintiffs whether they continue to oppose any and if so, precisely what parts of the proposed amended pleading. If there continue to remain disputed issues relating to the proposed amended pleading, including in relation to the provision of particulars, the parties should contact my Chambers by no later than 4:00pm on 7 October 2025. If required, arrangements will then be made to list the matter to deal with such pleading issues as remain in dispute.
If the parties are unable to agree in relation to appropriate orders as to costs then, by 4:00pm on 17 September 2025 the parties should file submissions of no more than two pages addressing disputed questions of costs. Unless otherwise advised, I will determine any outstanding costs issues on the papers.

(Registre du Commerce et des Societes of Nanterre 552 069 791)

[1] [2015] VSCA 172 ('Kuipers').

[3] Northern Health v Kuipers [2015] VSCA 172, [28].

[6] KTC v David [2022] FCAFC 60 [110]-[111]; cited in Janssen v OnePath Custodians Pty Ltd [2024] FCA 497, [22].

[7] Northern Health v Kuipers [2015] VSCA 172, [23]-[25].

[8] Northern Health v Kuipers [2015] VSCA 172, [22].

[9] [2025] VSC 121 ('Hepi').

[12] Hatfield v Agtrack (NT) Pty Ltd (2001) 183 ALR 674; [2001] VSC 182, [139].

[13] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [84].

[14] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [39]. See also Commonwealth of Australia v Winston (2024) 116 NSWLR 111; [2024] NSWCA 277, [57].

[15] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [40]-[41].

[16] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [39].

[17] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6 [27], [46].

[18] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [40]; see also Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [128].

[19] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [83] (Ormiston JA), [85] (Chernov JA) and [87] (O'Bryan JJA);

[20] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [52].

[21] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [52].

[22] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [80].

[23] Hepi v Toyota Finance Australia Ltd [2025] VSC 121 [92] (citing Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [52]).

[24] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [83].

[25] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [93].

[26] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [94].

[27] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [140]-[141].

[28] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [99]-[132].

[29] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [142]-[147].

[30] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [67].

[31] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [85].

[32] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [139], [177].

[33] Hepi v Toyota Finance Australia Ltd [2025] VSC 121 [146].

[34] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [162].

[35] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, 140.

[37] Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 595.

[38] Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 595.

[39] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [140].

[40] Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 595.

[41] Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6, [52].

[42] Commonwealth of Australia v Winston (2024) 116 NSWLR 111; [2024] NSWCA 277, [138]-[139].

[43] Hepi v Toyota Finance Australia Ltd [2025] VSC 121, [146].

[44] [2025] FCAFC 9 ('Impiombato').

[45] Impiombato v BHP Group Limited [2025] FCAFC 9, [135].

[49] BCI Finances Pty Ltd (In Liq) (No 4) [2016] FCA 1351; (2016) 348 ALR 227, [244].

[51] Re Akron Roads Pty Ltd (in liquidation) (No 3) [2016] VSC 657; (2016) 348 ALR 704, [271].

Court (General Civil Procedure) Rules 2015

Securities and Investments Commission Act 2001

Court of Australia Act 1976

PRACTICE AND PROCEDURE - Pleadings - Leave to amend Statement of Claim - Proceeding commenced by generally indorsed writ - Whether proposed amendments otherwise statute barred are outside the perimeter or range of the indorsement - Whether leave should be given to amend to rely on statute barred causes of action - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 36.01(1), (6); Limitations of Actions Act 1958 (Vic) s 34 - Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584; Hepi v Toyota Finance Limited [2025] VSC 121, applied; Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield [2003] VSCA 6; (2003) 7 VR 63; Commonwealth of Australia v Winston [2024] NSWCA 277; (2024) 116 NSWLR 111, referred to.

[110] The Court's power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated: Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94 at [20] (Gilmour and Foster JJ); Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [14]. The power must be exercised in a "way that best promotes the Court's overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible": Caason at [19] and the cases cited therein; s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The object of the Court is "not to punish parties for mistakes made in the conduct of their case, but to correct errors with the result that a decision can be made on the real matters in controversy": Clough & Rogers v Frog (1974) 4 ALR 615 at 618 quoting Cropper v Smith [1884] UKLawRpCh 91; (1884) 26 Ch D 700 at 710; Caason at [20].

[111] Leave to amend should generally be granted unless the proposed amendment is futile, including, for example, because the issue sought to be raised by the amendment has no reasonable prospects of success, or would be liable to be struck out as not raising a reasonable cause of action, or where the amendment would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by the award of costs: ; at -[22]; at ; at [21].

(1) the duties that would be expected to be performed by a director in the relevant company - noting that this will vary according to matters such as the size of the company and the allocation of the responsibilities within the company. This is subject to the requirement that the person performs what the court in Deputy Commissioner of Taxation v Austin [1998] FCA 1034; (1998) 28 ACSR 565 referred to as "top‑level management functions";

(2) the duties actually performed by the person;

(3) whether others in the company considered the person a director;

(4) whether the company held out the person as a director;

(5) whether the person held themselves out as a director; and

(6) whether those outside the company considered the person to be a director.

(2024) 116 NSWLR 111

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