Aramax Nominees Pty Ltd and Primax Nominees Pty Ltd v Australia and New Zealand Banking Group Limited

Case [2020] NSWSC 1369

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Aramax Nominees Pty Ltd and Primax Nominees Pty Ltd v Australia and New Zealand Banking Group Limited & Ors [2020] NSWSC 1369
Hearing dates: On the papers
Date of orders: 8 October 2020
Decision date: 08 October 2020
Jurisdiction:Equity - Commercial List
Before: Stevenson J
Decision:

Leave to amend Commercial List Statement refused

Catchwords:

CIVIL PROCEDURE – pleadings – application to amend Commercial List Statement – lengthy history of purported amendments – necessity to exclude irrelevant allegations

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Corporations Act 2001 (Cth)

Cases Cited:

Australia and New Zealand Banking Group Limited v James (No 3) [2019] NSWSC 832

James v Australia and New Zealand Banking Group Limited [2016] NSWSC 833

James v Australia and New Zealand Banking Group Limited [2017] NSWCA 84

James v Australia and New Zealand Banking Group Limited [2018] NSWCA 41

James v Australia and New Zealand Banking Group Limited [2020] NSWCA 101

James v Australia and New Zealand Banking Group Limited (No 2) [2017] NSWSC 216

McGuirk v The University of New South Wales [2009] NSWSC 1424

Category:Procedural and other rulings
Parties: David Anthony James (First Plaintiff)
Liquor National Pty Ltd (Receivers and Managers Appointed) (Second Plaintiff)
Wine National Pty Ltd (Receivers and Managers Appointed) (Third Plaintiff)
Print National Pty Ltd (Receivers and Managers Appointed) (Fourth Plaintiff)
Print National Australia Pty Ltd (Receivers and Managers Appointed (in liquidation) (Fifth Plaintiff)
TLT Nominees Pty Ltd (Receivers and Managers Appointed) (in liquidation) (Sixth Plaintiff)
Newcastle Liquor Wholesalers Pty Ltd (Seventh Plaintiff)
Aramax Nominees Pty Ltd (Eighth Plaintiff)
Primax Nominees Ltd (Ninth Plaintiff)
Australia and New Zealand Banking Group Ltd (First Defendant)
TLT Nominees Pty Ltd ACN 133 250 307 (Receivers and Managers Appointed) (in liquidation) and Newcastle Liquor Wholesalers, Paul Merryweather and Greg Hall both in their personal capacities and in their capacities as Receivers and Managers of (Second Defendant)
Representation: Solicitors:
Allsop Glover (Plaintiffs)
Allens (Defendants)
File Number(s): 2016/44772

Judgment

  1. The eighth and ninth plaintiffs, Aramax Nominees Pty Ltd and Primax Nominees Pty Ltd, seek leave pursuant to s 64 of the Civil Procedure Act 2005 (NSW) to amend the current Commercial List Statement in these proceedings.

  2. There were originally nine plaintiffs in these proceedings. Mr David James was the first plaintiff.

  3. The defendants are Australia and New Zealand Banking Group Limited (“ANZ”) and Mr Paul Merryweather and Mr Greg Hall, who are the receivers and managers of TLT Nominees Pty Ltd and Newcastle Liquor Wholesalers Pty Ltd, both of which companies are now in liquidation. I will refer to Messrs Merryweather and Hall together as “PwC”, as they are partners of PricewaterhouseCoopers.

  4. Over six years ago, on 16 May 2014, Mr James consented to judgment in ANZ’s favour in separate proceedings [1] in the sum of a little under $14 million. ANZ’s claims against Mr James were under guarantees given by Mr James in respect of debts owed to the ANZ by companies associated with Mr James.

    1. 2013/306563.

  5. In 2016, Mr James sought leave under s 237 of the Corporations Act 2001 (Cth) to bring certain claims against ANZ and PwC on behalf of various companies including Liquor National Pty Ltd (in liquidation) (Receivers and Managers appointed) and Wine National Pty Ltd (in liquidation) (Receivers and Managers appointed).

  6. On 16 June 2016, by consent, that application was dismissed by Ball J who, on 23 June 2016, made a lump sum costs order against Mr James. [2] Mr James was subsequently refused leave to extend time to seek leave to appeal against that costs order. [3]

  7. On 17 October 2016, Mr James filed a notice of motion in the same proceedings, seeking to recast his claims against ANZ and PwC as personal claims. The Proposed Amended Commercial List Statement Mr James sought to file at that time also listed Aramax and Primax as parties.

  8. I dismissed that application on 9 March 2017. [4]

    4. James v Australia and New Zealand Banking Group Limited (No 2) [2017] NSWSC 216.

  9. On 17 March 2017 I dismissed the proceedings so far as they concern a claim by Mr James. I also made orders providing for Aramax and Primax to circulate a Proposed Amended Commercial List Summons and Commercial List Statement.

  10. On 15 March 2018 the Court of Appeal dismissed an appeal from my decision. [5]

  11. On 14 September 2018 the High Court dismissed Mr James’ application for special leave to appeal from that decision.

  12. The proposed Aramax and Primax claims in these proceedings were continually adjourned by consent pending the determination of Mr James’ appeal and High Court application, referred to above, as well as a subsequent application by Mr James to have the 16 May 2014 consent judgment set aside. That application was dismissed by Ball J on 5 July 2019. [6] On 1 June 2020 the Court of Appeal dismissed an application for leave to appeal from that decision. [7]

    6. Australia and New Zealand Banking Group Limited v James (No 3) [2019] NSWSC 832.

    7. James v Australia and New Zealand Banking Group Limited [2020] NSWCA 101.

  13. It is against that background that Aramax and Primax seek leave to amend the subject proceedings to constitute themselves as the only plaintiffs and to propound their own claim against ANZ and PwC.

  14. ANZ and PwC do not dispute that, despite the history I have set out, it is open to Aramax and Primax to continue these proceedings as the sole plaintiffs.

  15. However, ANZ and PwC submit that, in light of the history I have set out, it is important that the Proposed Amended Commercial List Statement contain only allegations relevant to the claim to be brought by Aramax and Primax and to not contain irrelevant allegations.

  16. I agree. In particular, allegations relevant only to any claims by Liquor National or Wine National or by Mr James personally should not appear in Aramax’s and Primax’s claims.

  17. The Amended Commercial List Statement alleges that the sole director and shareholder of each of Aramax and Primax is Mr John James, the brother of Mr David James.

  18. ANZ’s and PwC’s submissions take issue with 12 paragraphs in the Proposed Amended Commercial List Statement.

  19. The first two are paragraphs C22 and C32 in which the allegation is made that Mr David James entered identified guarantees.

  20. On behalf of Aramax and Primax it was submitted, without elaboration, that these paragraphs “set out facts which are relevant to the conduct of [ANZ and PwC] to which their claims relate” and “do not relate to any claim by Mr James”.

  21. However, the guarantees are not subsequently referred to in the Proposed Amended Commercial List Statement [8] and I fail to see how they can be relevant to the claims now sought to be advanced.

    8. Apart from in five deleted paragraphs: C191, 192, 216, 217 and 218.

  22. Next, ANZ and PwC refer to paragraphs C95 and C118 in which it is alleged that the receivers appointed by ANZ “interfered with the rightful occupation” of warehouses by Aramax and Primax and with the occupation of those premises by “those having authority” from those companies; including Liquor National, Wine National and Mr James.

  23. The submissions provided on behalf of Aramax and Primax did not explain why those allegations are relevant to the claim that Aramax and Primax seek to make out. I cannot see their relevance.

  24. ANZ and PwC then refer to paragraph C139 of the Amended Commercial List Statement. That clause alleges that on 20 August 2020 the receivers removed “the aforesaid property of Mr James” and of “DH” at an identified property and provides particulars by reference to “paragraphs 82 and 83 above”. The difficulty with this is that the paragraph in the List Statement formerly identifying “DH” is deleted from the proposed Amended Commercial List Statement, as are paragraphs C82 and C83.

  25. Next, ANZ and PwC refer to paragraph C141. The complaint in respect to that paragraph is that the reference to a number of named companies has been deleted, evidently inconsistently with the inclusion of those names in the subsequent paragraph (C142) which deals with questions of causation.

  26. On behalf of Aramax and Primax it is accepted that that clause needs to be recast.

  27. Finally, ANZ and PwC refer to paragraphs C145A and C145B of the Proposed Amended Commercial List Statement.

  28. Paragraph C144C deals with the loss that Aramax and Primax claim to have suffered as a result of the conduct complained of at paragraphs C144A and C144B. Paragraphs C145A and C145B allege that by reason of the same conduct, Liquor National and Wine National were unable to continue to use the services of Aramax and Primax. I cannot see how those allegations add anything to the claims made by Aramax and Primax themselves in the preceding paragraphs.

  29. As ANZ pointed out, it is not for ANZ, or the Court, to redraft the Proposed Amended Commercial List Statement for Aramax or Primax. [9]

    9. Eg see McGuirk v The University of New South Wales [2009] NSWSC 1424 at [35] (Johnson J): “It is not the function of the Court to draw or settle the party’s pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist.”

  30. I am not prepared to give Aramax and Primax leave to file an Amended Commercial List Statement in the form proposed.

  31. I order that the notice of motion filed on 11 September 2020 by Aramax and Primax be dismissed with costs.

  32. Any further application by Aramax or Primax to amend the Commercial List Statement should be accompanied by circulation of a Proposed Amended Commercial List Summons.

  33. The matter is listed for further directions on 23 October 2020.

**********

Endnotes

Amendments

19 October 2020 - Coversheet amended.

Details
AGLC
Aramax Nominees Pty Ltd and Primax Nominees Pty Ltd v Australia and New Zealand Banking Group Limited [2020] NSWSC 1369
Case
[2020] NSWSC 1369
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Aramax Nominees Pty Ltd and Primax Nominees Pty Ltd brought an action against Australia and New Zealand Banking Group Limited, contending that the bank had breached its contractual obligations. The defendants opposed the claims, arguing various defences, including that the claims were statute-barred and that the plaintiffs had failed to discharge a burden of proof. The plaintiffs sought to amend their Commercial List Statement to add new allegations and claims, a request opposed by the defendants who argued the amendments were unnecessary and irrelevant to the existing issues in dispute.

The central legal issues before the court involved whether the plaintiffs were entitled to amend their pleadings to include new allegations and claims, and if so, whether such amendments were relevant and necessary in the context of the existing dispute. The defendants contended that the proposed amendments were an attempt to introduce new causes of action that were not relevant to the matters already in dispute, and that the plaintiffs had had ample opportunity to amend their pleadings in the past. The plaintiffs argued that the amendments were necessary to clarify and expand upon their existing claims, and that they were directly related to the defendants' conduct.

The court found that the plaintiffs had a right to amend their pleadings, but that such amendments must be relevant and necessary to the existing issues in dispute. The court noted that the plaintiffs had a lengthy history of purported amendments and that many of the proposed changes did not directly address the core issues in the case. The court held that the amendments were not necessary or relevant to the existing matters in dispute, and that allowing them would serve to prolong the litigation unnecessarily. Consequently, the court dismissed the plaintiffs' application to amend their pleadings.

The court ordered that the plaintiffs' application to amend their Commercial List Statement be dismissed. The court further ordered that the plaintiffs pay the defendants' costs associated with the application. The judgment underscored the importance of ensuring that any amendments to pleadings are directly relevant to the existing issues in dispute, and that parties should be mindful of the need to avoid unnecessary prolongation of litigation through excessive amendments.

Orders

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Background

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Evidence

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Decision

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