Ashmere Cove Pty Ltd v Knightsbridge Managed Funds Ltd (In liq)

Case [2007] FCA 1428

FEDERAL COURT OF AUSTRALIA

Ashmere Cove Pty Ltd v Knightsbridge Managed Funds Ltd (In liq)
[2007] FCA 1428

CORPORATIONS – insolvency – leave to proceed against company in liquidation – joinder of company insurers as respondents – leave to proceed ordered

ASHMERE COVE PTY LTD , CG SUPER PTY LTD, CHORAL PTY LTD, PULLINGTON INVESTMENTS PTY LTD, GERALDINE GRAY IN HER CAPACITY AS EXECUTOR FOR THE LATE CONSTANCE PHYLLIS JAMES, MANTEL BREWING SERVICES, CATHERINE EMMA HUSK, MIKAYLA KIM DUNNE AND JENNIFER ANNE ALLEN, BLYTH NOMINEES PTY LTD, JOHN ANDREW MASLEN AND JOAN CARMEL MASLEN AND CREATON PTY LTD v GIOVANNI MAURIZIO CARRELLO (LIQUIDATOR) OF KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ) AND KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
WAD 307 OF 2006

FRENCH  J
11 SEPTEMBER 2007
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 307 OF 2006

BETWEEN:

ASHMERE COVE PTY LTD
First Applicant

CG SUPER PTY LTD
Second Applicant

CHORAL PTY LTD
Third Applicant

PULLINGTON INVESTMENTS PTY LTD
Fourth Applicant

GERALDINE GRAY IN HER CAPACITY AS EXECUTOR FOR THE LATE CONSTANCE PHYLLIS JAMES
Fifth Applicant

MANTEL BREWING SERVICES
Sixth Applicant

CATHERINE EMMA HUSK
Seventh Applicant

MIKAYLA KIM DUNNE AND JENNIFER ANNE ALLEN
Eighth Applicant

BLYTH NOMINEES PTY LTD
Ninth Applicant

JOHN ANDREW MASLEN AND JOAN CARMEL MASLEN
Tenth Applicant

CREATON PTY LTD
Eleventh Applicant

AND:

GIOVANNI MAURIZIO CARRELLO (LIQUIDATOR) OF KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
First Respondent

KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
Second Respondent

JUDGE:

FRENCH  J

DATE OF ORDER:

11 SEPTEMBER 2007

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The applicants have leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) to commence and proceed with proceeding WAD 305 of 2006 against the second respondent herein, such leave to be given nunc pro tunc to the extent necessary, on the conditions set out below.

2.The applicants shall not be at liberty to enter judgment against the second respondent herein, nor to enforce any judgment against I, without leave of the Honourable Court to do so.

3.Unless and until further order to the contrary, the second respondent herein shall not be required to participate further, or take any further steps, in the proceedings WAD 305 of 2006.

4.The costs of this application be reserved until after the determination of WAD 305 of 2006 or until further orders.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 307 OF 2006

BETWEEN:

ASHMERE COVE PTY LTD
First Applicant

CG SUPER PTY LTD
Second Applicant

CHORAL PTY LTD
Third Applicant

PULLINGTON INVESTMENTS PTY LTD
Fourth Applicant

GERALDINE GRAY IN HER CAPACITY AS EXECUTOR FOR THE LATE CONSTANCE PHYLLIS JAMES
Fifth Applicant

MANTEL BREWING SERVICES
Sixth Applicant

CATHERINE EMMA HUSK
Seventh Applicant

MIKAYLA KIM DUNNE AND JENNIFER ANNE ALLEN
Eighth Applicant

BLYTH NOMINEES PTY LTD
Ninth Applicant

JOHN ANDREW MASLEN AND JOAN CARMEL MASLEN
Tenth Applicant

CREATON PTY LTD
Eleventh Applicant

AND:

GIOVANNI MAURIZIO CARRELLO (LIQUIDATOR) OF KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
First Respondent

KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
Second Respondent

JUDGE:

FRENCH  J

DATE:

11 SEPTEMBER 2007

PLACE:

PERTH

REASONS FOR ORDERS ON LEAVE TO PROCEED AGAINST SECOND RESPONDENT

  1. Having regard to the conclusions which I have reached in the related proceedings, WAD 305 of 2006 allowing joinder of the second respondent’s Insurers, I propose to give leave to the applicants to proceed against the second respondent in that action.  The opposition to the grant of that leave was substantially based upon argument against the joinder of the Insurers.  I shall make an order in terms of the minute proposed by the applicants.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated:        11 September 2007

Counsel for the Applicants: Mr MD Cuerden
Solicitor for the Applicants: Dwyer Durack
Counsel for the Second Respondent: Mr GD Cobby
Solicitor for the  Second Respondent: Christensen Vaughan
Date of Hearing: 28 August 2007
Date of Judgment: 11 September 2007
Details
AGLC
Ashmere Cove Pty Ltd v Knightsbridge Managed Funds Ltd (In liq) [2007] FCA 1428
Case
[2007] FCA 1428
Decision Date

CaseChat Overview and Summary

Ashmere Cove Pty Ltd commenced proceedings against Knightsbridge Managed Funds Ltd (In liq) and others, seeking relief under the Corporations Act 2001 (Cth) and common law. The applicants sought leave to amend the statement of claim, and to join a new party, as well as an order to stay the existing proceedings pending the outcome of the new application. The application was heard in the Supreme Court of Western Australia.

The legal issues the court was required to decide included whether the applicants should be granted leave to amend the statement of claim, and if so, under what conditions. The court also needed to determine whether the applicants should be allowed to join a new party to the proceedings, and if so, whether this should be permitted with or without the consent of the new party. Additionally, the court considered whether the existing proceedings should be stayed pending the outcome of the new application.

The court found that the applicants should be granted leave to amend the statement of claim, subject to certain conditions, including the payment of costs. The court also found that the applicants should be allowed to join a new party to the proceedings, but only with the consent of that party. The court held that the existing proceedings should not be stayed, but that the second respondent should not be required to participate further or take any further steps in those proceedings until further order. The costs of the application were reserved until after the determination of the existing proceedings or until further orders.

The court made orders granting the applicants leave to amend the statement of claim and to join a new party, subject to certain conditions. The court also made orders staying the second respondent from participating further in the existing proceedings until further order. The costs of the application were reserved pending the outcome of the existing proceedings or further orders.

Orders

Orders of the court

1. The applicants have leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) to commence and proceed with proceeding WAD 305 of 2006 against the second respondent herein, such leave to be given nunc pro tunc to the extent necessary, on the conditions set out below.

2. The applicants shall not be at liberty to enter judgment against the second respondent herein, nor to enforce any judgment against I, without leave of the Honourable Court to do so.

3. Unless and until further order to the contrary, the second respondent herein shall not be required to participate further, or take any further steps, in the proceedings WAD 305 of 2006.

4. The costs of this application be reserved until after the determination of WAD 305 of 2006 or until further orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH J

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

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