Terranora Leisure Time Management Ltd (in liq) v Harris
[2002] QSC 424
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- Unreported Judgment
- Terranora Leisure Time Management Ltd (in liq) v Harris[2002] QSC 424
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Terranora Leisure Time Management Ltd (in liq) v Harris[2002] QSC 424
Reported at [2004] 1 Qd R 93
Terranora Leisure Time Management Ltd (in liq) v Harris[2002] QSC 424
Reported at [2004] 1 Qd R 93
SUPREME COURT OF QUEENSLAND
[2002] QSC 424
File No S 7251 of 1998
BETWEEN:
TERRANORA LEISURE TIME MANAGEMENT LTD
(IN LIQUIDATION) ACN 003 020 693
Plaintiff
AND:
ERNEST GEORGE HARRIS First Defendants
WILSON JOSEPH WILDE
TERRANORRA LAKES COUNTRY CLUB
LTD (IN LIQUIDATION)Second Defendant
MOYNIHAN J – REASONS FOR JUDGMENT
DELIVERED ON: | 17 December 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 February 2002 |
JUDGE: | MOYNIHAN J |
ORDER: | Application for leave to amend the amended statement of claim refused. |
CATCHWORDS: | PROCEDURE – PLEADINGS – STATEMENT OF CLAIM AMENDMENT – where plaintiff seeks to amend the amended statement of claim to add a cause of action for damages for conspiracy, add a claim for compensation pursuant to s 232(6) Corporations Law for first defendant’s improper use of their position as receivers and managers of the plaintiff and to incorporate particulars already provided – where the proposed plea of conspiracy is statute barred – where UCPR 376 applies - whether breach of statutory or fiduciary obligations are capable of founding an actionable conspiracy – where lapse of time between the events relied upon and the proposed conspiracy claim is significant. Corporation Law ss 232(1), 232(4), 232 (6), 1317B, 1317E, 1317H, Part 9.4B Uniform Civil Procedure Rulesr376, 150(1)(k), 157(c) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Coomera Resort Pty Ltd v Kolback Securities & Ors [1998] QSC 216 Council of the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd & Ors (1998) 157 ALR 135 Crofter Handwoven Harris Tweed Co Ltd v Vetch (1942) AC 435 Daily Mirror Newspaper Ltd v Gardner (1968) 2 QB 762 Lonhro Ltd v Shell Petroleum Co Ltd (no 2) (1982) AC 173 Galland v Mineral Underwriters Ltd (1997) WAR 116 Transcontinental Mining Pty Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 |
COUNSEL: | P.A. Keane QC for the plaintiff T. North SC for the first defendant D.J. Jackson for the second defendant |
SOLICITORS: | Deacons for the plaintiff Allens Arthur Robinson for the first defendants Phillips Fox for the second defendants |
[1] The plaintiff applies to further amend its statement of claim (“the proposed pleading”) to do three things; to add a cause of action for damages for conspiracy, secondly to add a claim for compensation pursuant to s 232(6) of the Corporations Law for the first defendants’ improper use of their position as receivers and managers of the plaintiff and finally to incorporate particulars previously provided.
[2] The action was commenced in 1998 in respect of events occurring between 1989 and 1994. As the action is presently pleaded the plaintiff claims against the first defendant for compensation and damages. The claim against the second defendant, which is insolvent and in liquidation is for a declaration that it holds a specified sum as constructive trustee for the plaintiff and an order that that sum be paid to the plaintiff and a claim for compensation. Finally there is claim for interest against both defendants.
[3] In the event of the application being allowed the relief claimed against the defendants will be:-
against the first defendants:
● equitable compensation;
● damages for conspiracy and/or breach of duty;
● compensation orders pursuant to section 1317H of the Corporations Law;
against the second defendant:
● A declaration that it holds or received the sum of $3,200,000.00 as constructive trustee for the plaintiff;
● An order that it pay to the plaintiff such amount as represents the monies currently held on constructive trust;
● Equitable compensation; and
● Damages for conspiracy;
There is also a claim for exemplary damages and interest against each defendant.
[4] The proposed plea of conspiracy is statute barred and UCPR 376 applies. It relevantly provides:-
“4.The court may give leave to make an amendment, even if the effect of the amendment is to include a new cause of action, if-
(a) The court considers it appropriate; and
(b) The new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave….”
[5] The defendants oppose the amendments on the basis that a statement of claim incorporating them would be defective and embarrassing. They also submit that there is no satisfactory explanation of the lateness of the application and that the delay has caused actual prejudice.
[6] At the risk of oversimplification the following outline of relevant circumstances is sufficient for present purposes. The plaintiff was incorporated or acquired to serve as a vehicle for establishing a timeshare resort (the Resort) on land at Terranora Heights. The land was owned by the second defendant and a golf course and associated facilities had been erected on it. The Resort proposal contemplated the erection of accommodation and other facilities.
[7] Those who acquired redeemable preference shares in the capital of the plaintiff became entitled to participate in the timeshare scheme. It is convenient to note at this stage that individual owners of timeshare interests have instituted proceedings against the second defendant in the Federal Court in which they complain the security arrangements shortly to be mentioned had not been disclosed.
[8] As part of the timeshare arrangement the second defendant leased its land to the plaintiff at a nominal rent for a term of 40 years terminable only in the event of the plaintiff’s being wound up.
[9] In order to finance construction of the Resort, Terranora Timeshare Developments Pty Ltd, a company associated with the plaintiff and the second defendant, borrowed money from the State Bank of New South Wales.
[10] The borrowing was secured by a mortgage over the plaintiff’s lease, a floating charge and guarantees by the plaintiff and the second defendant. An agreement of 14 September 1989 extended the securities.
[11] It is alleged (para 17.3.9 of the proposed pleading) the plaintiff was at a special disadvantage vis a vis the second defendant because of its influence over the plaintiff’s board of directors. In these circumstances it is alleged the plaintiff’s directors caused it to enter into the extension agreement in breach of the fiduciary duty owned by them to it.
[12] Para 27.1 of the proposed pleadings allege:
“the extension agreement was entered into, not for the plaintiff’s benefit but to the benefit of the guarantors of the facility agreement, other than the plaintiff or alternatively the second defendant”.
[13] The finance arrangements provided that in the event of the sale of a specified number of timeshare interests and the proceeds of the sale being banked to a nominated bank account the State Bank would release its securities.
[14] The plaintiff alleges, it is in issue in the action, that notwithstanding this condition being complied with, the securities were not released but were enforced in circumstances to which I’ll turn shortly.
[15] The sale of preference shares conferring timeshare interests failed to generate sufficient money to repay the State Bank. In about June 1992 the State Bank made demand on the second defendant for repayment of the secured funds.
[16] The second defendant paid out the debt and was subrogated to the securities held by the State Bank. It is contented for the plaintiff that at the time of the subrogation the bank could not have any rights because the conditions referred to earlier had been satisfied, the securities therefore ought to have been released.
[17] The second defendant, having made demand on the plaintiff by reason of its payments as to security, appointed the first defendants as receivers and managers of the plaintiff. From about August 1992 to February 1994 they managed the timeshare business and tried, unsuccessfully, to sell the Resort and the plaintiff’s interest in the lease.
[18] It is alleged that the first defendants were officers of the plaintiff within the meaning of s. 232(1) of the Corporations Law and had the following statutory duties;
“To exercise reasonable degree of care and diligence and not to make use of their position to gain an advantage to themselves or any other person would cause determent to the plaintiff. The statutory duties were said to be imposed by s.232(4) the Corporations Law at of 1 February 1993 and by s.232(6) as of 1 February 1993. It is also alleged that the first defendants owed the plaintiff a fiduciary duty to act in good faith.”
[19] The defendants’ complaints can be approached in this way. Broadly speaking it is alleged that in 1993 the first defendant proposed an arrangement whereby a statutory demand would be made on the plaintiff, it would not be met but be wound up and the first defendants appointed liquidators. The condition for termination of the plaintiff’s lease having thus been satisfied the second defendant would be free to deal with the Resort as its asset.
[20] The gist of an actionable conspiracy is a conspiratorial agreement and consequent overt acts which cause damage. The arrangement is alleged to constitute an actionable conspiracy in this case because it was an agreement between the defendants with the sole or predominant purpose of injuring the plaintiff by terminating its lease, although no unlawful acts were involved in carrying it out (the unlawful purpose conspiracy); see proposed pleading 37.1.
[21] Alternatively, the agreement had as one of its purposes to injure the plaintiff by unlawful means and terminate its lease (the unlawful means conspiracy); see proposed pleading 37.2. The unlawful means relied on were acts by the first defendants that were in breach of their statutory or fiduciary duties to the plaintiff. The acts of the second defendant were in knowing assistance to those breaches; see proposed pleading e.g. 37.2.2, 26.5.
[22] It was not in issue that the law recognises two such categories of actionable conspiracy. The defendants contended that the breaches of statutory and fiduciary duty relied on by the plaintiff were not unlawful means capable of sustaining an actionable unlawful means conspiracy. They also complained that the contents of the pleading were embarrassing.
[23] The conspiracy is pleaded by paragraph 36 of the proposed pleading in the following terms:-
“…between May and November 1993 (the first and second defendants) wrongfully conspired:-
- to wind up the plaintiff
- consequently to terminate the lease
- to extinguish the right of preference shareholders to participate in the timeshare arrangements
- to terminate the plaintiff’s control of the Resort and to have the second defendant assume full control.”
[24] The conspiracy is alleged to be contained in letters from the first defendants to the second defendants on 17 May 1993 and 3 November 1993 and “otherwise inferred” from overt acts which are pleaded in identified paragraphs of the proposed pleadings “consistent with the matters set out in this correspondence”. I note in passing that the effect of this qualification is not altogether clear, at least to me.
[25] The letters relevantly provided:-
17 May 1993
“
- Liquidate Terranora Leisuretime Resort Management Limited. It would be preferable for the applicant creditor to be other than Terranora Lakes Country Club but if that cannot be arranged the action should be initiated by Terranora Lakes Country Club. I am not as concerned about this now as I was previously.
- Once Terranora Leisuretime Resort Management is in liquidation use the grounds of the liquidation to terminate the lease.
- As a result of the termination of the lease and the liquidation of Terranora Leisuretime Resort Management all the rights of the timeshare owners will be extinguished.
- The extinguishment of these rights should be contemporaneous with an offer to all existing timeshare owners on the following lines:-
(a proposal was set out)
(ii) All maintenance levies will be extinguished.
(iii) The consideration for the right to take up the entitlement should be a payment of an initial amount of $200 to Terranora Lakes Country Club for each week of entitlement converted to the new system.
(iv) ….
(v) The right to use can be exercised only in the year of entitlement and any unused portion cannot be carried forward to other years.
The thought is still in its infancy and as you know I requested Phil Walker to update his trading projections and to incorporate projections based upon this proposal. It may then be possible to see if the idea is workable and just what the result may be for the Terranora Lakes Country Club and what benefits may flow towards servicing the secured debt.
Some of the benefits are:-
(a) Total control by (the second defendant) of the resort.
(b) Some continuing benefits for the existent timeshare owners.
(c) A capital input from the timeshare owners for the benefit of (the second defendant).
(d) Assured patronage from timeshare owners towards the operational costs of the resort, which should assist (the second defendant) in operating the resort.
(e) …
(f) Elimination of all problems in relation to Terranora Leisuretime Resort Management Limited and the claims of the timeshare owners.
(g) Termination of the remaining creditors claims in Terranora Leisuretime Resort Management as a result of the liquidation of that company. Clearer unsecured security for your bankers (except the right of use in favour of the previous timeshare owners but that could probably be documented in such a way that these rights ceased on certain conditions e.g. sale of the resort).
These comments are confidential and as stated throughout this letter the receivers” proposal is in a formulate stage and can be improved on with further discussion between all relevant parties.”
3 November 1993
“(the writer has)
given further consideration to the (second defendants) decision to proceed with the proposal being put forward by Eastern Hospitality Management Pty Ltd, particularly with respect to the issue relating to possible claims against the Club and the present and former directors.
I have explained to you previously that one of the desirable outcomes of any such arrangement would be to achieve a formal release of any such claims. That can only be done by way of a formal Scheme of Arrangement which would be quite expensive and might not be able to be achieved within the time frame that is available to you.
Such a Scheme of Arrangement would require ASC approval, Court approval, approval of the majority of preferred shareholders in attendance at a meeting to be convened on 21 days notice and it would be extremely difficult to achieve all of this in conjunction with the prospectus documentation and meet the proposed takeover date of 1 January 1994.
The result can be partially achieved by incorporating a release in any documentation to be signed by the existing timeshare owners who wish to participate in the new scheme. The exposure of TLCC and its directors to claims would then be limited to claims by existing timeshare owners who do not wish to participate in the new scheme. Whether that is a satisfactory result is of course a commercial decision for you. So long as you are aware of the residual exposure and you decide that it is in the interests of the Club to move forward with the Eastern Hospitality scheme without securing a full release, I can understand and will respect your decision.
I understand that the Club proposes to apply to the Supreme Court for the winding up of Terranora Leisuretime Resort Management Limited (Receiver Appointed). I have previously advised you that it would be preferable to have someone other than the Club take that step to avoid the risk of a disgruntled group of timeshare owners causing trouble. My concern is that they might claim that the Club is breaching its obligations because it is by its own action creating circumstances which will enable it to terminate the lease.
I understand however that despite your enquiries, you have not been able to find another creditor willing to apply for winding up. If that is the case I think it would be prudent for the Club to file the winding up application only after the EHM documentation has been approved by the ASC and by the Club’s various advisers and consultants, and after the proposal is accepted by Terranora Leisuretime Resort Owners (Mr Richard Attwoood’s group). It would certainly not be prudent in my view to apply for winding up before you are confident that you have the support of the Terranora Leisuretime Resort Owners.
I think that if you follow that course, there will be less prospect of any opposition to the winding up. It will hopefully be seen as simply another step in implementing of the new proposal.”
[26] Against this background it is convenient to turn first to the defendants’ submission that the law does not recognise breach of statutory or fiduciary obligations as pleaded to be unlawful means capable of founding an actionable conspiracy.
[27] The question was considered by Mackenzie J in Coomera Resort Pty Ltd v Kolback Securities Ltd and others [1998] QSC 216. Having considered the authorities Mackenzie J dealt with the role of intention to cause damage in an unlawful means conspiracy by way of contrast with its predominant purpose role in an improper purpose conspiracy.
[28] He then turned to consider whether a conspiracy action could be based on breach of a fiduciary duty. He concluded that, in the absence of contrary authority, the “traditional view” that only a conspiracy to commit a criminal offence, breach of contract or a tort were improper means capable of founding an actionable conspiracy. In Coomera the claim of conspiracy was therefore not well founded to the extent that it was based on a plea of conspiracy to cause breach of a fiduciary relationship.
[29] The plaintiff sought to distinguish Coomera on the basis that it did not prevent a breach of statutory duty which was also a breach of fiduciary duty being a sufficient unlawful means to found an actionable conspiracy. The pleading is however founded on both and it is not obvious that the traditional categories should be extended to statutory but not fiduciary duties.
[30] The Daily Mirror Newspaper Ltd v Gardner (1968) 2 QB 762 @ 782-784 and 787 was cited by the plaintiff. That was a decision of the Court of Appeal on an appeal from an interlocutory injunction restraining the defendants from procuring or inducing breach of contrast. Denning MR remarks at 783 B:-
“I have always understood that if one person interferes with a trade or business of another and does so by unlawful means then he’s acting unlawfully even if he doesn’t procure or induce any actual breach of contract. Interference by unlawful means is enough”
The application of that proposition here is not obvious. The outcome was overruled by the House of Lords in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 in any event.
[31] My attention has not been directed to authority contrary to Coomera. No reason has been shown not to follow it and I am inclined to follow Coomera. Breach of fiduciary or statutory duty are not unlawful means capable of founding an actionable unlawful means conspiracy. The plaintiff should not be permitted to amend to raise such a conspiracy here.
[32] Although on the view I take of the matter it is perhaps not strictly necessary to do so I turn to consider the defendants submission that the Corporations Law provides exhaustively for the consequence of breach of its provision. For this reason a breach of the law is not available to sustain an actionable unlawful means conspiracy.
[33] Whether a statute provided exhaustively as to the consequences of breach so as to preclude the breach founding an actionable unlawful means conspiracy was considered by Drummond J in Council of the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd & Ors (1998) 157 ALR 135.
[34] The starting point of Drummond J’s examination was the decision of Beaumont J in Transcontinental Mining Pty Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405. The principle stated there was that where a statute made previously lawful conduct unlawful and provided a specific remedy, only that remedy was available. Justice Drummond applied that principle to a statute providing civil remedies for harm caused by conduct which is prescribed. Specifically he applied it to the Trade Practices Act (1974) Commonwealth which provided civil remedies for the contravention of s 45.
[35] In my view comparable considerations arise in this case. I note that the extent to which the plaintiff relies on breach of statutory duties imposed by the Corporations Law notably s 232 as founding an unlawful means conspiracy as distinct from another cause of action are not altogether clear from the proposed pleading, at least to me. Amendments reflected in the proposed pleading have varied in their treatment of the role of s 232 in founding the plaintiff’s claims.
[36] Part 9.4B of the Corporation Law provides the effect that the court can make civil penalty orders pursuant to s 1317E. The person who has the right is the Commissioner or delegate, s 1317B. The order must be made within 6 years after the contravention s 1713E, that is past here.
[37] Those considerations support the conclusion that the law is the exclusive source of remedy for breach of its provisions. Such breaches are not in any event to support an unlawful means conspiracy
[38] I turn to consider the defendants submissions on the content of the proposed pleading; the treatment of the conspiracy claim. To recapitulate somewhat conspiracy is the agreement of two or more to do injury to a party as a sole or predominant purpose (an unlawful purpose) or to effect such a purpose by unlawful means, the gist of the tort is the combination of agreement and overt acts causing damage.
[39] In so far as the action is founded on an unlawful intention the relevant intention is “the real purpose of the combination”, Crofter Handwoven Harris Tweed Co Ltd v Vetch (1942) AC 435 at 444. It is not a matter inferring the necessary intent as reasonable consequences of deliberate acts. The actual intention of the conspirators must be pleaded and proved.
[40] The Uniform Civil Procedure Rules (UCPR) r 150(1)(k) requires intention or other condition of mind including knowledge or notice must be specifically pleaded and UCPR 157(c) provides to the effect that the particulars necessary to sustain it must be specifically pleaded.
[41] Put shortly, the pleading must state precisely any relevant intention, the objects and means of the alleged conspiracy to injure, the overt acts alleged to have been done by each conspirator and the damage which they cause.
[42] The proposed pleading is 43 pages with some 47 paragraphs, some with numerous subdivisions.
[43] In addition to founding the claim for damages for conspiracy the proposed pleading founded claims for equitable and statutory compensation, breach of duty against the first defendant, a declaration of a constructive trust and equitable compensation against the second defendant and exemplary damages against both the defendants. These claims in practical if not strict legal terms are claims against joint tort feasors. This pleading with some additional matters has to also support the conspiracy claim.
[44] From an overall perspective the proposed pleading does not satisfactorily disentangle what must be pleaded and particularised to sustain the claim of conspiracy from what is relied on in respect of the other claims. The following considerations illustrate this.
[45] In Ward v Lewis (1955) 1 WLR 9 there was criticism of merely adding a conspiracy as an independent cause of action when there were other torts committed. In Galland v Mineral Underwriters Ltd [1997] WAR 116 the West Australian Full Court by majority struck out as embarrassing a plea of conspiracy to commit a tort. In that case the tort of conversion was committed and it was held that there were not two torts but one, in that case, conversion. Although the conspiracy implicated the parties as tort feasors the conspiracy was not a separate tort.
[46] Even if not directly applicable those considerations outline the challenges facing the pleadings in this case.
[47] The proposed pleading does not, in my view succeed in disentangling the pleading of the elements supporting the alternative conspiracy claims from the pleading of the other causes of action. Given the complexities of this case the precedent in Bullen & Leake and Jacobs Precedents of Pleading (13 ed p 220) is of little assistance to the plaintiff.
[48] It will for example be recalled that paragraph 36 of the proposed pleading alleges that the first and second defendants, between May and November 1993 wrongfully conspired to wind the plaintiff up, terminate its lease, extinguish timeshare holder’s rights and have the second defendant assume full control of the Resort. None of the acts are unlawful on its face for the second defendant to have engaged in.
[49] For the second defendants to assume full control of the Resort is manifestly in its interest. Such a plea, see proposed pleading 36.4 and 42.5 is inconsistent with a sole or predominant purpose to injure the plaintiff; without more it is embarrassing.
[50] So far as the reference to extinguishing timeshare rights is concerned it is not considerably obvious that extinguishing the rights of the timeshare holders was directed to or intended to harm the plaintiff.
[51] Put another way as the proposed pleading stands having pleaded acts which are either on their face neutral terms of an intent to injure the plaintiff, or which advance the second defendants’ interest. It does not address for example the consideration that any damage resulting in inferentially no more than the consequence of the defendants’ advancement of their own interest; see the comments at Balkham & Davis, The Law of Torts, (Butterworth 2nd ed) 632.
[52] So far as an unlawful means conspiracy is concerned as Mackenzie J pointed out in Coomera frequently the facts will “inevitably lead to the inference” that the conspiracy was directed against a person with an intent to cause damage even though it is not necessarily the only or predominant intent. This however is not such a case.
[53] Paragraph 38 of the proposed pleadings allege that the first defendant did overt acts which were in breach of their statutory and fiduciary duties. The plea is designed to engage both categories of conspiracy. They are said to have failed to oppose or set aside the demand or to make inquiry or take advice as to whether the security was relevantly enforceable, further they failed to oppose the winding up or to set aside security and consenting to it being liquidated. The allegation of consenting to be liquidated is neither unlawful nor indicative of conspiracy.
[54] While failure to act might constitute a beach of obligation it does not by any means follow that it is an overt act as to implement a conspiracy.
[55] The proposed pleading, given that none of the alleged conspiratorial acts were unlawful for the second defendant to engage in purports to implicate it by alleging “knowing assistance” of its directors in breach of their statutory and fiduciary duties set out in paragraph 26.5. That paragraph deals with the execution of the extension agreement which was entered into some 4 years before the alleged conspiracy with a differently constituted board.
[56] Paragraph 42 of the proposed pleading appears intended to found the claims of exemplary damages. These are introduced by the proposed pleading. The plea of the first and second defendants intent in the alternative as distinct from jointly seems clearly to be embarrassing. Moreover in addition to an embellished reiteration of the four elements of the conspiracy pleaded by para 36 adds an intention of avoiding payment of the plaintiff’s creditors. The relevance of this additional consideration, even to a claim of exemplary damages by the plaintiff is not clear.
[57] It will be recalled that UCPR 376(4) conditions the exercise of a discretion to allow an amended pleading when the cause of action is out of time on the new cause of action arising out of the same facts or essentially the same facts. It is true that broadly speaking there is a significant overlap between the material facts pleaded in the proposed pleading and previous addition of the statement of the claim and that the plea of conspiracy relies substantially on those facts. For example the letter of 17 May 1993 and 3 November 1993 alleging to contain a conspiracy does not arise for the first time. I am therefore prepared to proceed on the basis that the condition imposed by rule 376(4)(b) is sufficiently satisfied to give rise to a consideration of sub para (4)(d).
[58] In so far as 376(4)(a) is concerned on the view I take of the matter the proposed pleading is defective in the unlawful acts relied on cannot sustain an ‘unlawful means’ conspiracy. The Corporations Law breaches are not in any event available to do so. The pleading is embarrassing as is indicated by the considerations I have just canvassed. I turn to the issues of lateness of the application and delay.
[59] It may be that the terms of conspiracy are or should largely be in writing and to be inferred from overt acts. That said the plea of conspiracy has taken a long time to emerge and the reasons for this doe not entirely justify the delay. That said I would not on that ground alone refuse leave to file the proposed plead.
[60] The introduction of the conspiracy claim introduces considerations of intent by the first and second defendant (in the later case its directors) which had not previously arisen. The events go back to 1989. The composition of the board of the second defendant changed over time. Potential witnesses are elderly and in at least one is in poor health. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 evidence even decisive evidence may have disappeared without anyone knowing. This case will be decided on less evidence than would have been available at the time of its commencement.
[61] Finally I note that a refusal of leave does not prevent the plaintiff perusing the action as it is presently constituted in circumstances where the proceedings are taking far too long. I discuss the application for leave to deliver the further amended statement of claim.
[62] The combined effect of the considerations which I have canvassed is that the application for leave to amend the amended statement of claim should be refused. Even if breaches of statutory or fiduciary duties were capable of founding an unlawful means conspiracy and breach of the Corporations Law could be relied on, the state of the pleading and the consequences of the lapse of time would in my view justify refusing the application.