Millinium Capital Managers Ltd v Soma Group Ltd (No.2)

On 26 March 2020 I refused to grant the plaintiff, Millinium Capital Managers Ltd, leave to amend its Commercial List Statement in the form then proposed, but gave leave to Millinium to circulate a further proposed Amended Commercial List Statement: Millinium Capital Managers Limited v Soma Group Limited [2020] NSWSC 300.

These reasons assume familiarity with that judgment.

Millinium has now circulated a proposed Amended Commercial List Statement.

That document more fully particularises the basis upon which Millinium will contend that Mr Marshall and Mr Chamberlain were “involved” in Soma’s alleged misleading or deceptive conduct.

As I set out at [9] of my 26 March 2020 judgment, such knowledge was, in the previous proposed Commercial List Statement, particularised as follows (taking as a typical example, proposed paragraph 138C):

The current proposed draft List Statement now particularises the allegation at paragraph 138C as follows:

The same particulars are relied upon in relation to paragraphs 145C, 147E. Similar particulars are proffered in relation to paragraph 150C which are repeated in relation to paragraphs 157C, 159E. Similar particulars are given in relation to paragraph 174C, which are repeated in relation to paragraph 176C.

In my opinion, this further particularisation cures the difficulty that I found in relation to the earlier iteration of the proposed Amended List Statement.

At [18] of my judgment on 26 March 2020 I said that the mere fact of Mr Marshall’s and Mr Chamberlain’s directorship could not, without more, be sufficient to establish their intentional participation in any breach by Soma of s 18 of the Competition and Consumer Act 2010 (Cth), Schedule 2 – The Australian Consumer Law.

As now proposed to be particularised, Millinium’s case is that the fact that Mr Marshall and Mr Chamberlain were directors of Soma, combined with the other matters particularised, especially the fact that Soma did not employ or otherwise engage any employees or contractors, gives rise to an inference of their intentional participation on Soma’s alleged misleading or deceptive conduct.

Whether the trial judge is prepared to draw such an inference, in all circumstances, is a matter which remains to be seen.

At [22] of my judgment of 26 March 2020, I referred to the defendants’ pending application to strike out certain paragraphs of the existing Commercial List Statement.

In his submissions in relation to proposed amendments, Mr Gee, who appears for Messrs Marshall and Chamberlain, submitted that paragraphs 148 to 150 of the list statement should be struck out upon the basis that they do not disclose any cause of action against Mr Marshall.

That submission appears to overlook the contents of paragraph 28 which alleges that Mr Marshall, along with Soma and Logic Fund Management Ltd, made the representations set out. Mr Gee also submitted that paragraph 35 of the proposed Amended Commercial List Statement should be struck out. That paragraph alleges a further representation by Mr Marshall and Soma. The allegation is particularised by reference to identified documents as well as “conversations between Tom Wallace on behalf of Millinium and Marshall on behalf of Soma”.

In my opinion, these matters sufficiently particularise the allegation. The documents will no doubt be disclosed in the course of the proceedings and evidence adduced as to the terms of the conversations.

I make the following orders: