Addenbrooke Pty Ltd v Duncan (No 4) - [2014] FCA 579

FEDERAL COURT OF AUSTRALIA
Addenbrooke Pty Ltd v Duncan (No 4) [2014] FCA 579

Citation: Addenbrooke Pty Ltd v Duncan (No 4) [2014] FCA 579

Parties: ADDENBROOKE PTY LIMITED ACN 055 973 576 v TRAVERS WILLIAM DUNCAN, PETER GRAY, and SOUTHERN CROSS EQUITIES PTY LTD
ACN 071 935 441

File number: NSD 2243 of 2012

Judge: JACOBSON J

Date of judgment: 27 May 2014

Cases cited: Addenbrooke Pty Ltd v Duncan (No 3) [2014] FCA 322

Date of hearing: 27 May 2014

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 11

Counsel for the Applicant: Mr FM Douglas QC with Mr G O’Mahoney

Solicitor for the Applicant: Gye & Associates

Counsel for the First Respondent: Mr GES Ng

Solicitor for the First Respondent: Yeldham Price O’Brien Lusk

Counsel for Second and Third Respondents: Mr JAC Potts

Solicitor for Second and Third Respondents: Speed & Stracey Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2243 of 2012

BETWEEN:
ADDENBROOKE PTY LIMITED ACN 055 973 576
Applicant

AND:
TRAVERS WILLIAM DUNCAN
First Respondent

PETER GRAY
Second Respondent

SOUTHERN CROSS EQUITIES PTY LTD ACN 071 935 441
Third Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

27 MAY 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The interlocutory applications filed by:

(a)the First Respondent on 22 May 2014; and
(b)the Second and Third Respondents on 27 May 2014

be dismissed.
2.The Respondents pay the costs of the interlocutory applications heard on 27 May 2014.
3.The Notice to Produce issued by the Applicant on 23 May 2014 is set aside.
4.The Applicant pay the Second Respondent’s costs of the interlocutory application to set aside the Notice to Produce.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2243 of 2012

BETWEEN:
ADDENBROOKE PTY LIMITED ACN 055 973 576
Applicant

AND:
TRAVERS WILLIAM DUNCAN
First Respondent

PETER GRAY
Second Respondent

SOUTHERN CROSS EQUITIES PTY LTD ACN 071 935 441
Third Respondent

JUDGE:

JACOBSON J

DATE:

27 MAY 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

I have before me two interlocutory applications brought on behalf of the remaining respondents in these proceedings. The effect of the interlocutory applications brought by those respondents is to seek to vary the orders for security which I made on 2 April 2014.
Mr Ng of Counsel appears for the first respondent, Mr Duncan. Mr Potts of Counsel appears for the second respondent, Mr Gray, and the third respondent, Southern Cross Equities Pty Ltd. The submissions proceed upon the obvious proposition that in order to enliven the jurisdiction of the Court to vary the previous interlocutory order, it is necessary to demonstrate changed circumstances.
The respondents submit that the necessary changed circumstances arise from the reduction of the number of respondents who will now proceed to trial. This is because since 2 April 2014, the applicant has reached settlements (the terms of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCA 579
Decision Date

CaseChat Overview and Summary

In the case of Addenbrooke Pty Ltd v Duncan (No 4), the Federal Court of Australia was presented with interlocutory applications from Travers William Duncan, Peter Gray, and Southern Cross Equities Pty Ltd. These applications sought to modify the orders for security previously made by the Court on April 2, 2014. The applicants argued that the reduction in the number of respondents, following settlements reached by the applicant with the other respondents, constituted a changed circumstance warranting a re-evaluation of the security orders.

The primary legal issue before the Court was whether the reduction in the number of respondents constituted sufficient changed circumstances to justify altering the security orders. The applicants contended that the principle of proportionality, which had guided the Court's earlier decision, should lead to a re-apportionment of the security funds among the remaining respondents. They submitted that since the original orders were based on an assumption of five respondent groups, the new composition of three groups should result in a reallocation of the $1.5 million in security funds.

Justice Jacobson, however, found that while proportionality was indeed a guiding factor in the previous exercise of discretion, the Court had considered the individual positions of each respondent when determining the $300,000 allocation. The Court noted that the reduction in the number of respondents might actually reduce the anticipated length of the hearing, potentially lowering the overall costs. Furthermore, the Court emphasized that the respondents were not entitled to a full indemnity for their costs, and the undertaking by Mr. O'Neil to meet the costs was a significant factor in the original decision. Consequently, the Court concluded that the threshold for demonstrating changed circumstances had not been met.

Ultimately, Justice Jacobson dismissed the interlocutory applications brought by the remaining respondents. The Court ordered that the respondents pay the costs of the applications and set aside the Notice to Produce issued by the applicant on May 23, 2014, with the applicant bearing the costs of the interlocutory application to set aside the Notice to Produce.

Orders