Aspendale Holdings Pty Ltd v Wellington Street Investments; Pty Ltd and Anor

[2009] VCC 1309

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST

EXPEDITED CASES DIVISION

Case No. CI-09-02392

ASPENDALE HOLDINGS PTY LTD	Plaintiff
v
WELLINGTON STREET INVESTMENTS PTY LTD	First-named Defendant
and
GREGORY JAMES RITCHIE	Second-named Defendant

---

JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September, 6 and 12 October 2009
DATE OF JUDGMENT:	29 October 2009
CASE MAY BE CITED AS:	Aspendale Holdings Pty Ltd v Wellington Street Investments Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2009] VCC 1309

REASONS FOR JUDGMENT

Catchwords: PRACTICE AND PROCEDURE – Joinder of party – applicant claiming assignment of cause of action – litigation funding – whether assignment effective – application dismissed; County Court Civil Procedure Rules 2008 – Rule 9.06; 9.09(2)

APPEARANCES:	Counsel	Solicitors
For the Applicant for Joinder	Mr S Thomas	Pinto Law Pty Ltd, trading as Issac Brott & Co
For the Plaintiff	Ms N Ward, solicitor	Middletons
For the First Defendant	Mr M Goldblatt	Tisher Liner & Co.
HIS HONOUR:

Introduction

1          By Summons filed 5 August 2009, Aussie Invests Pty Ltd (“Aussie Invests”) applied for leave to be joined as a second plaintiff in this proceeding on the basis that the plaintiff’s cause of action had been assigned to it pursuant to the terms of a Funding Deed dated 13 September 2007. The proceeding was commenced on 1 June 2009.

2          For the reasons I give below, I have decided to dismiss the summons.

3          On 16 September 2009, the first defendant, Wellington Street Investments Pty Ltd (“Wellington”), by summons sought an order that Aussie Invests provide security for costs. That summons came on for hearing before me in the Directions List on 25 September 2009.

4          The summons to join Aussie Invests had been adjourned to 2 October 2009. On 25 September 2009, I suggested and counsel for Aussie Invests and for the first defendant agreed, that it was appropriate to hear that summons first because the question of security for costs became irrelevant if Aussie Invests’ application was unsuccessful.

5          I therefore heard argument on 25 September 2009. During that argument counsel for the applicant expressed a wish to consider some of the arguments put by the first defendant against joinder and so I directed that written submissions be filed and served. While awaiting those submissions it became apparent to me that the plaintiff had not had an opportunity to be heard on 25 September 2009. I therefore relisted the matter for 6 October 2009. On that occasion the plaintiff was represented by Ms Ward, solicitor, who advised me that the plaintiff consented to the joinder application and did not have the financial resources to be further represented in the application.

6          On 6 October 2009, counsel for the applicant informed the Court of an agreement made that morning between his client and the liquidator of the plaintiff which he said contained an assignment of the plaintiff’s cause of action to the applicant. I considered that the Court should be aware of the terms of that agreement and directed that an affidavit exhibiting it be filed and served, and adjourned the hearing until 12 October 2009. On that latter date I heard further argument from the applicant and the first defendant and reserved judgment. The plaintiff was not represented on 12 October 2009.

7          The second defendant, who is alleged to have been a director of the first defendant, has not been served with the writ and was therefore not represented in respect of this application.

8          The security for costs application has yet to be determined.

The Plaintiff’s Claim

9          The claim as pleaded arises from a joint venture agreement entered into in 2002 to subdivide land at 149-156 Nepean Highway, Aspendale. The plaintiff’s claim in summary is as follows.

10        It entered into a joint venture with a number of joint venture partners, including Wellington, in which it was agreed that it would act as trustee of the joint venture and would purchase the land and subdivide it into sixteen lots and construct a townhouse on each lot.

11        On 20 March 2002, in its capacity as a partner of the joint venture, the plaintiff assigned its interest in Lot 2 to Wellington and declared that it held the interest in the land in trust for Wellington. Terms of the assignment included that Wellington would assume the partners ( it is not made clear in the paragraph of the statement of claim whether the reference means partner’s or partners’) obligations arising from beneficial ownership pursuant to the indemnify the plaintiff in respect of all moneys to be paid in relation to, or arising from, the purchase of the land and the development of Lot 2.

12        The plaintiff would create a title for Lot 2 and transfer that title to Wellington upon Wellington meeting its partnership obligations. The allocated development cost of Lot 2 would be calculated at the rate of one-sixteenth of the development costs and was estimated to be $522,000.

13        The plaintiff purchased the land and developed it and sought reimbursement from Wellington of the share of the costs of construction and development incurred pursuant to the partnership obligations. Wellington is alleged to have repudiated the agreement by not paying the Lot 2 expenses the plaintiff had incurred on behalf of Wellington and the plaintiff claims damages in the sum of $309,000.

14        The second defendant, Gregory James Ritchie, is sued as the sole director of Wellington. He is alleged to have represented to the plaintiff that Wellington would indemnify the plaintiff for any liability arising from the joint venture agreements and that Wellington currently had and would retain sufficient funds to make the required payments. These representations, which are said to have been made on behalf of Wellington, are alleged to have been representations that were misleading or deceptive or likely to mislead or deceive in breach of the Trade Practices Act 1974 (“TPA”) and the Fair Trading Act 1999 (“FTA”) for which Wellington is liable and to attract ancillary liability to Mr Ritchie under s.75B of the TPA and s.145 of the FTA.

The Claim for Joinder

15        Aussie Invests’ claim for joinder is based on the allegation that the plaintiff’s cause of action has been assigned to it under a document entitled “Funding Deed”. The applicant is the litigation funder under the Funding Deed and provides project management of the project, that is, these proceedings and their management.

16        Rule 9.06 enables the Court at any stage of the proceeding to order that any of the following persons be added as a party, namely:

“(i)	a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii)	a person between whom and any party to the proceeding there may exist a question arising out of or relating to or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding.”

17        Rule 9.09 (2) provides that:

“Where at any stage of a proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may order that the other person be added as a party to the proceeding or made a party in substitution for the original party and that the proceeding be carried on as so constituted.”

18        These Rules confer a discretion on the Court on whether a joinder application should be granted. The submissions made to me did not differentiate between the requirements of Rule 9.06 and Rule 9.09. Under Rule 9.06 my task is to determine, as it was once described, whether the applicant’s case is so framed so that it can be adjudicated upon by the Court, whether in its favour or against it.[1] It is not to determine whether the claim, sought to be brought by the party seeking to be joined, will succeed.

[1]             Long v Crossley (1879) 13 Ch D 388, at 391

19        It might be thought that the relevant rule for this application is Rule 9.09(2) and that that Rule requires proof of an assignment having occurred. I have not found authority on whether an application to join a party based on an assignment of a cause of action is able to be determined under either Rule 9.06 or Rule 9.09, but I have proceeded on the basis that under both provisions it is not my task to determine whether the case based on an assignment will succeed at trial. However, there must be presented to the Court a satisfactory basis for a prima facie argument that an assignment has occurred. A mere assertion by an applicant for joinder that it is the assignee of the plaintiff’s cause of action will be insufficient.

20        The application by Aussie Invests was supported by an affidavit of Mr Alan Douglas Burlock of 30 July 2009, in which who swears that he is its sole director. He swears that on 13 October 2007, the plaintiff and Aussie Invests entered into a Funding Deed. He refers to clause 9.4 of that Deed which I set out below.

21        Mr Burlock swears that on 1 July 2009, the Supreme Court of Victoria ordered that the plaintiff be wound up and that Colin Nicol be appointed liquidator for the purposes of the winding up. He says that the applicant wishes to be joined to the proceeding and continue it to pursue the plaintiff’s rights, entitlements and claims against the defendants, those rights and entitlements having been assigned to the applicant by way of the winding up and appointment of the liquidator.

22        The applicant tendered in evidence a document said to be the original Funding Deed and a facsimile dated 27 July 2009 evidencing payment by the applicant of $1000. This latter document was said to prove the funding alleged in the recitals of the Funding Deed.

The Funding Deed

23        It is necessary to set out the recitals to and a number of provisions of the Funding Deed. The recitals state:

“A	AHPL & AIPL[2] are both registered Companies in the Commonwealth of Australia.
B	AHPL finds itself in a position where it has to defend a claim by the Respondents in the Melbourne Magistrates’ Court (“MMC”), and has on behalf of the JV[3] a valid Counterclaim against the Respondents but does not have the funds to prosecute these 2 legal matters.
C	AHPL has requested AIPL to provide the management and funding components of the Project,[4] and consents to AIPL conducting such investigations as AIPL may consider appropriate. AHPL wishes to defend the Proceeding and wishes to prosecute the Counterclaim on behalf of the JV and accordingly for valuable consideration enters into this agreement with AIPL to fund the appointment of Lawyers to provide the legal work to AHPL as appropriate on the terms acceptable to AIPL.
D	AHPL acknowledge that AIPL has, by virtue of its obligations and entitlements hereto (including to receive a percentage of the Resolution Sum) set out in this Deed, an interest in the Claims and the Proceedings, and AHPL irrevocably charges these Claims to AIPL.

[2]             AHPL is the plaintiff; AIPL is the Applicant

[3]             JV means the Aspendale joint venture entered into by the JVPS i.e., the parties who hold the entitlements to the sixteen lots of the Aspendale joint venture at the time of the date of execution of this Deed.

[4]             The Project means the management of the conduct of the Proceedings in order to achieve resolution of the claims, with the aim of maximising settlement or judgement proceeds, net of project costs, in respect of claims as quickly as possible, having due regard to all risks, including being unsuccessful.

24        The provisions of the Funding Deed that deal specifically with assignment of causes of action are clauses 9.4 and 9.5, which state:

9.4	If for any reasons (either actual or likely in AIPL’s opinion to occur) whatsoever, including but not limited to administration, insolvency, winding up and/or deregistration AHPL cannot continue to be the party responsible for the conduct of the Proceedings and Claims, then AHPL immediately and irrevocably assigns all of the Claims and its rights pursuant thereto to AIPL, and authorises AIPL to continue the conduct of such Proceedings and Claims in its own right, on the basis that AHPL shall become entitled to the balance of the Resolution Sum after the deductions pursuant to clause 8. hereinbefore, are subtracted from any Resolution Sum on the successful conclusion of the Claims.
9.5	AIPL shall be entitled to take the unconditional and irrevocable assignment of the Proceedings and the Claim by verbal or written advice to AHPL if in the reasonable opinion of AIPL the circumstances as contained in clause 9.4 hereinbefore occur or might occur.
. . .”

25        It is necessary to make some reference to other provisions of the Funding Deed. In summary, it provides that the applicant is entitled to proceed with the claim and is given power to conduct the litigation and obtain information from the plaintiff about the litigation. Clause 8.1 states:

“AHPL, as Consideration for the financing of the Claims and Proceedings by AIPL pursuant to the terms of this Deed, AHPL hereby disposes to AIPL:

(a)	if Resolution whether by negotiation and/or court judgment occurs and an amount flows from such resolution to AHPL from the Respondents or any other Defendant or party; then
(b)	first, AIPL shall be reimbursed for all Project Costs together with interest and GST; then
(c)	second, all outstanding legal and Project Costs shall be paid; then
(d)	third, 70% of the net Resolution Sum shall be paid to AIPL;
(e)	forth (sic), the balance shall be paid to AHPL.”

26        Project Costs are defined as:

“All of the costs and expenses of any nature whatsoever associated with the Project including but not limited to GST made by any entity which are approved by AIPL for investigation of the Claims, Respondent & Proceedings, all legal, counsel fees, disbursements of any nature and magnitude. AIPL shall have sole unfettered right to include any costs in Project Costs and AIPL may pay any costs AIPL in its sole right decides to accept.”

27        Clause 9.1-9.3 deals with the appointment of lawyers. Clause 9.8 deals with the situation where AHPL, but not AIPL wishes to settle. Clause 9.11 provides that:

“The parties to this Deed agree that prior to any distribution of proceeds flowing from this action, the legal costs of the Lawyers will be paid in full, together with any arrears owed to the Practitioner will be paid to the Practitioner at the time of receipt of funds received consequent upon resolution.”

Arguments as to Joinder

28        Counsel for the first defendant made a number of submissions that the Funding Deed did not provide a basis for joinder of the applicant as a plaintiff.

29        The first argument turned on the wording of clause 9.4 of the Funding Deed and was that the application was premature because, as the plaintiff was still a party to the proceeding, it had not been established that it was unable or could not continue to be the party responsible for the conduct of the proceeding. Second, it was said that there was no evidence that the plaintiff could not continue with the litigation as it was a matter for the liquidator to decide whether to fund the litigation.

30        The applicant responded that the liquidator had indicated that he intended to discontinue the proceeding and therefore it could be inferred that the liquidator was not intending to prosecute any claim that the plaintiff may have as against the defendants. If the liquidator discontinued the proceeding prior to the determination of the joinder application, there would not be a proceeding for the applicant to join. So far as the construction of clause 9.4 was concerned, the applicant submitted that the word “cannot” was subject to the preceding words and was therefore subjective in the sense of referring to the opinion of the applicant.

31        The assignment referred to in clause 9.4 of the Funding Deed has unusual features. It is not in the standard form of an assignment of causes of action.[5] It is conditional. It purports to operate on the existence of reasons, either actual or likely in the applicant’s opinion to occur, whereby the plaintiff can no longer be the party responsible for the conduct of the proceedings and claims. Those reasons can be anything that means that the plaintiff cannot continue to be the party responsible for the conduct of the proceedings and claims. A number of specific circumstances are given including winding up. However the reason, including any of the circumstances mentioned, have to be established as a reason whereby the plaintiff can no longer be the party responsible for the conduct of the proceedings and claims. The reasons can be the occurrence of one of the specified circumstances, or they can be a reason that is either actual or likely in Aussie Invests’ opinion to occur. But they must be a reason whereby the plaintiff cannot be the party responsible for the conduct of the proceedings and claims.

[5]             See e.g., Scholle Industries Pty Ltd v AEP Industries (NZ) Ltd (2007) 99 SASR 178, discussed below

32 The affidavit filed in support of the summons for joinder provides no evidence, that by reason of the winding up and appointment of the liquidator, the plaintiff cannot continue to be the party responsible for the conduct of the proceedings and claims. Mr Burlock does not say that he held such an opinion. It is assumed that the effect of an order for winding up and the appointment of a liquidator is that the plaintiff cannot be the party responsible for the conduct of the proceeding. The fact that a company is to be wound up does not mean that it cannot, through the liquidator, continue the proceeding: see s.477(2)(a) of the Corporations Act 2001. When that occurs the company is still the party, that is the party to the proceeding and the party on the record responsible for the conduct of the proceeding. The fact that the liquidator assumes control of the company’s affairs does not in my opinion cause clause 9.4 to operate. Thus clause 9.4 is not expressed in a manner that makes it operate if a liquidator chose to continue the proceedings.

33        Clause 9.5 of the Funding Deed takes the matter no further because it depends on establishing that in the reasonable opinion of the applicant the circumstances contained in clause 9.4 occur or might occur.

34        As I have stated, the liquidator consented to the application for joinder and said that the plaintiff did not have resources to enable it to continue to appear. The applicant submitted that the liquidator had indicated that he intended to discontinue the proceeding, that it could be inferred that he was not intending to prosecute any claim that the plaintiff may have against the defendants and that if the liquidator discontinued the proceeding prior to the determination of the joinder application, there would not be a proceeding for the applicant to join. On one view those circumstances might suggest that reasons exist or are likely to exist whereby the plaintiff cannot be the party responsible for the conduct of the proceeding. I consider, however, that if clause 9.4 is to be relied on to prove the assignment, then the reasons said to cause it to operate need to be established by evidence. The assignment of a cause of action to a corporation providing litigation funding is no small step, and in the context of a clause framed in the manner of clause 9.4, some evidence, showing at least a prima facie case that the assignment has occurred, needs to be presented. That has not occurred in this application. I do not consider that the fact that a winding up order has occurred is itself sufficient reason to cause the assignment in clause 9.4 to occur.

35        I therefore consider that the application is not made out. It has not been established to a prima facie or arguable standard that the circumstances giving rise to the assignment have occurred.

36        As stated above, I do not consider that it is my role on this application to determine if the claim that is the subject of the alleged assignment will succeed. This means that I do not need to determine whether clause 9.4 and clause 9.5 operate in law or equity as an assignment. I was not addressed on, and do not express a concluded view on, whether clause 9.4 does effect an assignment in law[6] or equity[7].

[6]             Westbourne Grammar School v Sanget Pty Ltd [2007] VSCA 39

[7]             See, e.g., Holroyd v Marshall (1862) 10 HL Cas 191; 11 ER 999; and Partnership Pacific Securities Ltd, Re [1994] 1 Qd R 410, at 422

37        However, I repeat that I do not consider that the Court is required to accede to an application for joinder based on an assignment of a cause of action merely because it is asserted that an assignment has occurred because of a winding up order.

38        In my opinion, in view of the wording of clause 9.4, the applicant is at least required to place before the Court affidavit evidence which establishes the matters set out in clause 9.4, that is the existence of reasons, or the opinion that such reasons are likely to occur, whereby the plaintiff cannot continue to be the party responsible for the conduct of the proceedings. I do not consider that Mr Burlock’s affidavit contains that evidence.

39        I was not addressed on whether the assignment was invalid because it involved the invalid maintenance of proceedings and might involve an abuse of process.[8] In any event, the authorities suggest that such an issue should be determined at the trial of the action.[9]

[8]             Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386, and subsequent cases, including Deloitte Touche Tohmatsu v JP Morgan Portfolio Services Ltd (2007) 158 FCR 417

[9]             AIRS Re Pty Ltd v JBB Treat T/As Haines Norton [2007] NSWSC 1100, at 27

40        In view of the conclusion that I have reached, I will deal only briefly with the other arguments relied on by the first defendant in opposing the joinder.

41 I accept that the cause of action vested in the liquidator following the order of the Supreme Court of 1 July 2009 and only he could assign it: see s.477(2) of the Corporations Act 2001. That provides a second ground for refusing the joinder based on the Funding Deed. However the existence of the agreement of 6 October 2009 needs to be acknowledged and I will return to it below.

42        I do not accept the first defendant’s argument that the application should have been for substitution and not joinder. In any event it is within the scope of an application for joinder for the Court to determine that substitution is the appropriate outcome.

43        I also do not accept the first defendant’s submission that, in essence, clause 9.4 was invalid because it purported to assign a chose in action personal in character rather than proprietary. In my opinion, the cause of action itself can be assigned and is not personal in character, whatever may have been the position of the joint venture agreement. This is not a case where there is an attempted assignment of the benefit of an obligation, where the identity of the obligee is material to the obligor.[10] I agree in this respect with the applicant’s submission that the chose in action sought to be assigned is the right to sue the defendants.

[10]           The first defendant relied, inter alia, on the decisions in Don King Productions Ltd v Warren [1998] 2 All ER 608 and Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1900-3] All ER 386, and see M Smith, ‘The Law of Assignment’, pps 348-351

44        The first defendant also argued that there was no joint venture documentation before the Court and that therefore recitals B and C of the Funding Deed could not be accepted in their terms because Aussie Invests had not presented any evidence of its authority to act on behalf of the joint venture. It was also submitted that the members of the joint venture had no dispute with the defendants. Some of the submissions made by counsel referred to affidavits of Michael George Burton which are exhibited to an affidavit by Jonathan Tisher of 15 September 2009 filed in support of the summons seeking security for costs.

45        Although it is unnecessary to decide the point, these issues would have been matters to raise at the trial of the proceeding, if the joinder application had been successful. In my opinion, they probably go further than the matters that I should consider on a joinder application.

46        The first defendant also questioned the authenticity of the Funding Deed and referred to statements made by Mr Burlock in an affidavit sworn in Supreme Court of Victoria proceeding No. 6963 of 2009, and submitted that the addresses referred to in the Funding Deed were not the registered offices of either party to the Deed at the time that the Deed purported to be made.. In the Funding Deed the address of the plaintiff and the applicant is the same – 7 Romoly Drive, Forest Hill. The first defendant also submitted that the document tendered to the Court was not the original of the Funding Deed.

47        The evidence in connection with this point was contained in an affidavit of 13 August 2009 of Mr Phillip Leaman, the solicitor for the first defendant, who stated that:

(a)	until 6 August 2009, neither Wellington or its solicitors knew of the Funding Deed;
(b)	neither Wellington nor the solicitors had received notification that the plaintiff or Aussie Invests acted on behalf of the joint venture, nor is it pleaded that the current proceeding was brought on behalf of anyone else apart from the plaintiff.

48        Mr Leaman provided details of the registered office and principal place of business of the applicant and of the plaintiff which differed from the information that was contained in the Funding Deed.

49        There was no request that Mr Burlock attend for cross-examination on his affidavit and in the absence of that occurring it is difficult to determine the significance of such issues on an interlocutory application.

50        There is another matter that I should mention arising from the particular cause of action brought against the second defendant, Mr Ritchie, but which was not the subject of submissions by the parties. On my reading of the pleadings, the only cause of action brought against Mr Ritchie is for liability, including ancillary liability, for breach of Part V of the TPA and the FTA. It is not possible to assign a claim for damages under s.82 of the TPA.[11] The assignment said to occur under clause 9.4 purports to assign all of the causes of action in the proceeding. In Scholle Industries Pty Ltd v AEP Industries (NZ) Ltd,[12] the Court was prepared to allow an amendment to pleadings, which relied on an assignment of causes of action, including a cause of action for damages under s.82 of the TPA on the basis that the assignment may be capable of severance. I did not hear argument about the possibility of adopting that course in this case and I should not express a concluded view about the matter. In any event, Scholle’s Case suggests that the issue of the applicability of the principles of severance to an assignment is to be determined at the trial of the proceeding.

[11]           Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720

[12] (2007) 99 SASR 178

The Agreement of 6 October 2009

51        I have referred above to how this agreement was placed in evidence before the Court. When questioned by me on 12 October 2009, counsel for the applicant stated that he did rely on this agreement in support of the joinder application. Counsel for the first defendant opposed the reliance on that agreement and said that he had not prepared to meet a case based on that agreement. The terms of the agreement of 6 October 2009 that appear of particular relevance are:

“A	AHPL was Wound Up on 1 July 2009 by order of the Honourable Associate Justice Efthim and Nicol was appointed Official Liquidator of AHPL that day.
B	AHPL had a valid Claim against the Respondents in regard to their participation in the JV.
C	AHPL did not have the funds to prosecute the Claim and entered into the Funding Deed with AIPL pursuant to which AIPL provided the funding to prosecute the Claim, including the appointment of Lawyers of AIPL’s choice, to provide the legal work to pursue the Claim.

D. AHPL funded by AIPL issued the Writ against the Respondents.

E.	AHPL and AIPL entered into an agreement on 13 October 2007 pursuant to which AIPL purported to take an assignment of the Proceedings from AHPL.
. . .
2.9	This Deed shall inure to and for the benefit of and be binding upon AHPL and its successors and assigns, AIPL and its successors and assigns and AB and his successors and assigns. A reference to a party to this Deed includes that party’s successors and permitted assigns.
2.10	AHPL irrevocably assigns the Proceedings and the Claims jointly and severally to AIPL and AB.
2.11	On 2 October 2009, AHPL will withdraw from the Proceedings and from such time AIPL will carry on the Proceeding in its own name without any involvement from AHPL.
. . . “

52        I consider that I should follow the course proposed by counsel for the first defendant and dispose of the summons of 5 August 2009 on the basis that the application for joinder made by that summons should be dismissed. I have so decided for two reasons. First, only the Funding Deed was relied on to support the summons when it was filed and when it was first argued on 25 September 2009. The 6 October 2009 agreement obviously did not exist at that time. That agreement was later put in evidence before the Court because of directions that I made. Second, the first defendant has not had a proper opportunity to address the effect of the agreement of 6 October 2009. I can by no means assume that the first defendant may not have arguments to put in respect of that agreement.

53        I therefore make no finding about the effect of the agreement of 6 October 2009.

54        I order that the summons filed by Aussie Invests Pty Ltd on 5 August 2009 be dismissed.

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