ANZ Banking Group Ltd v Intagro Projects Pty Ltd - [2004] NSWSC 1054

CITATION: ANZ Banking Group Ltd v Intagro Projects Pty Ltd & Ors [2004] NSWSC 1054

HEARING DATE(S): 29/10/04

JUDGMENT DATE:
11 November 2004

JUDGMENT OF: White J

DECISION: Refuse leave to the cross-claimant to file an amended cross-claim which includes paragraph 18 of the proposed amended cross-claim; Grant leave to the cross-claimant to file an amended cross-claim in terms of paragraphs 19 to 21 of the proposed amended cross-claim with the insertion of the words "of care and diligence" after the word "obligations" in paragraph 1; Costs of the application for leave to amend should be costs in the cause.

CATCHWORDS: PLEADING - Leave to amend - Proposed claim against directors of trustee company under Corporations Act, s 197 - Whether arguable that trust deed limited the trust assets to which trustee could have recourse to satisfy right of indemnity - Whether arguable that trustee not entitled to be fully indemnified out of trust assets if it acted in breach of trust - Construction of express indemnity of trustee acting in good faith - Court not to resolve arguable questions on application for leave to amend.

LEGISLATION CITED: Corporations Act 2001 (Cth)

CASES CITED: Hanel v O'Neill (2003) 48 ACSR 378
Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
RWG Management Limited v Commissioner for Corporate Affairs [1985] VR 385
Ecclesiastical Commissioners v Pinney [1900] 2 Ch 736
Gatsios Holdings Pty Ltd v Nick Kritharas Holdings (in Liq) (2002) ATPR 41-864
Nolan v Collie (2003) 7 VR 287
McLean v Burns Philp Trustee Co Ltd (1985) 2 NSWLR 623
Armitage v Nurse [1998] Ch 241
Walker v Stones [2001] QB 902
Darlington Futures v Delco Australia Pty Ltd (1986) 161 CLR 500

PARTIES :
Australia & New Zealand Banking Group Limited
v
Intagro Projects Pty Limited & Ors

FILE NUMBER(S): SC 50165/03

COUNSEL: Applicant: Mr S Rares SC
Respondent: Mr D Hammerschlag SC & Mr L Gyles

SOLICITORS: Applicant: Minter Ellison Lawyers
Respondent: Holding Redlich

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

WHITE J

Thursday, 11 November 2004

50165/03 AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED v INTAGRO PROJECTS PTY LIMITED & ORS

JUDGMENT

1 HIS HONOUR: This is an application by Australia New Zealand Banking Group Limited (“the Bank”) to file an amended cross-claim against Intagro Projects Pty Limited (“Intagro”) and its directors, Andrew George Robinson and Dominique Francoise Robinson (“the directors”). The proposed amendments concern the directors.

2 Intagro is the plaintiff in the proceedings. It seeks a declaration that it is not indebted to the Bank in an amount totalling $48,612,054.68, or at all. It contends that on or about 10 August 2001 it entered into a guarantee (“the first guarantee”) of the performance by TJF/EBC Pty Ltd (“TJF”) of that company’s obligations to the Bank. The Bank had agreed to lend money to TJF. Intagro also…

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: [2004] NSWSC 1054
Decision Date: 11 November 2004

CaseChat Overview and Summary

ANZ Banking Group Ltd has brought proceedings against Intagro Projects Pty Ltd, with the dispute before the Federal Court of Australia. ANZ seeks leave to amend its statement of claim to include a claim against the directors of Intagro, the trustee company, under section 197 of the Corporations Act. The proposed claim is based on the argument that the trust deed limited the trust assets to which the trustee could have recourse to satisfy the right of indemnity and that the trustee was not entitled to be fully indemnified out of the trust assets if it acted in breach of trust.

The legal issues before the court were whether it was arguable that the trust deed limited the trust assets to which the trustee could have recourse to satisfy the right of indemnity and whether it was arguable that the trustee was not entitled to be fully indemnified out of trust assets if it acted in breach of trust. The court also had to determine whether the express indemnity of the trustee acting in good faith could be construed in a way that would support the proposed claim. The court found that it was not appropriate to resolve these arguable questions on an application for leave to amend.

The court held that it was not necessary to resolve the arguable questions on the application for leave to amend. The court noted that the proposed claim against the directors of Intagro involved complex issues of trust law and the construction of the trust deed, which were not suitable for determination on an application for leave to amend. The court further held that it was not appropriate to resolve these issues at this stage of the proceedings, as they were better suited to be addressed at a later stage when all relevant evidence had been adduced. The court ultimately dismissed ANZ's application for leave to amend its statement of claim.

Orders