ACN 098 676 852 Pty Ltd v Edison Corporation Pty Ltd (ACN 082 288 604)
[2008] FCA 642
•8 May 2008
FEDERAL COURT OF AUSTRALIA
ACN 098 676 852 Pty Ltd v Edison Corporation Pty Ltd (ACN 082 288 604) [2008] FCA 642
ACN 098 676 852 PTY LTD v EDISON CORPORATION PTY LTD (ACN 082 288 604), BRIAN WILFRED PELHAM, GUY D'ARRIGO ASSOCIATES PTY LTD and GUY PETER D'ARRIGO
SAD 57 OF 2005
LANDER J
8 MAY 2008
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 57 OF 2005
BETWEEN:
ACN 098 676 852 PTY LTD
Applicant
AND:
EDISON CORPORATION PTY LTD (ACN 082 288 604)
First RespondentBRIAN WILFRED PELHAM
Second RespondentGUY D'ARRIGO ASSOCIATES PTY LTD
Third RespondentGUY PETER D'ARRIGO
Fourth Respondent
JUDGE:
LANDER J
DATE OF ORDER:
8 MAY 2008
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time to comply with the Court’s order of 11 March 2008 be refused.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 57 OF 2005
BETWEEN:
ACN 098 676 852 PTY LTD
Applicant
AND:
EDISON CORPORATION PTY LTD (ACN 082 288 604)
First RespondentBRIAN WILFRED PELHAM
Second RespondentGUY D'ARRIGO ASSOCIATES PTY LTD
Third RespondentGUY PETER D'ARRIGO
Fourth Respondent
JUDGE:
LANDER J
DATE:
8 MAY 2008
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 11 March 2008 I made orders at the behest of the applicant in the following terms:
1.The applicant if so advised lodge and serve any proposed further amended statement of claim within 28 days.
2.The applicant deliver to the respondents any further expert reports within 35 days.
3.The applicant make further and better discovery of documents made relevant by any proposed amended plea in the statement of claim within 28 days.
4.The applicant give the further and better particulars sought by the first and second respondents on 15 February 2008 within 28 days.
...
I adjourned the directions hearing until 7 May 2008 but this date was subsequently changed to 8 May 2008 to suit the convenience of the Court.
I was advised on the last occasion that the applicant intended to seek leave to amend its statement of claim by including a claim for damages in the nature of a Hungerfords v Walker (1989) 171 CLR 125 claim for damages. I was not advised on that occasion why it was that this application was being made so late.
This proceeding was commenced on 10 March 2005. The applicant seeks damages arising out of a loan it made in the sum of $4 million to a party, not a party to these proceedings. The applicant has known at least since March 2005 that its damages were in the amount of the loan together with whatever consequential damages would flow from that loan.
The applicant must have known since 2005 that it had a claim for interest on top of the amount of the principal sum which was lent to that other third party. No explanation was given on the last occasion as to why the applicant had not brought a claim for interest by way of damages but, to be fair to the applicant, I did not seek any explanation. The applicant said, through its counsel, that it would be in a position to file a proposed amended statement of claim within 28 days. It would also obtain an expert’s report from an accountant to support the claim for damages for interest. I adjourned the matter for 8 weeks to enable the orders which I made to be carried out with the intention that, when the matter resumed today, I would make orders for the exchange of witness statements and set the matter for trial.
On 7 May 2008 the applicant’s solicitor filed an affidavit in which she set out some of what had happened since the last occasion the parties were before the Court. She said that the amount which had been advanced by the applicant to the third party was applied from the applicant’s bank account maintained with Westpac Banking Corporation pursuant to obligations to repay those funds to lenders. I understand that to mean that the applicant’s case is that it borrowed $4 million from Westpac for the purpose of lending that money to the third party. The solicitor deposes that request had been made for the underlying loan documentation which had given rise to investigations which had been undertaken in Adelaide, Sydney and Bahrain.
The applicant’s solicitor said, that by reason of change in personnel of the applicant, its Bahrain principals and financier, the applicant has not been able to locate the relevant documents. She said that the documents were placed in secure storage with the applicant’s accountant but the applicant has not been able to access those documents by reason of the relevant principal being absent on leave. It is not clear to me at all why it is that the applicant’s solicitors or some other officer of the applicant cannot simply ask the applicant’s accountant to give up those documents so that they can be used, if they are in fact necessary for the purpose of pleading the claim for damages for interest.
This matter has taken more than three years to get to a position where the applicant now wishes to identify a claim for interest or loss of use of its money which must have been apparent from day one. The applicant has had more than sufficient opportunity to obtain the relevant documents necessary to compile a proposed statement of claim over the last eight weeks. The explanation given by the solicitor is simply not satisfactory.
It is not satisfactory simply to assert that a change in personnel has made it impossible to access documents in the hands of the applicant’s accountants. It is not satisfactory simply to assert that one of the applicant’s personnel will travel to Adelaide in the next two weeks to instruct or to obtain the documents and presumably instruct the solicitor. It is not satisfactory for the applicant to ignore orders of the Court in the way that the applicant has done so. It is not satisfactory for the solicitors to leave it to the day prior to this hearing to advise the Court that it had not complied with the Court’s orders. The time limit which was imposed upon the applicant was suggested by the applicant’s counsel himself. There is no reason why the applicant could not have complied with the orders.
Mr Robertson orally applied for an extension of time to comply with those orders. I refuse that application. If and when the applicant is in a position where it wishes to seek leave, if it does, to amend its statement of claim, it can make that application but I am not prepared to make orders of the kind which I made on the previous occasion and see them flaunted again. A proposed amended statement of claim will have to be prepared and it will have to be presented to the Court and a proper application made for leave to amend the statement of claim.
It is for those reasons that I refuse the application to extend time to comply with the orders made by me on 11 March 2008.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 20 May 2008
Counsel for the Applicant: Mr I Robertson Solicitor for the Applicant: Griffin Hilditch Counsel for the First and Second Respondents: Mr R Harms Solicitor for the First and Second Applicants: Minter Ellison Counsel for the Third and Fourth Respondents: Mr C Goodall Solicitor for the Third and Fourth Respondents: Lawson Smith Lawyers
Date of Hearing: 8 May 2008 Date of Judgment: 8 May 2008
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