Australian Money Exchange Pty Ltd (in liq) v Llewellyn; Keybridge Capital Ltd v Llewellyn

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2019 02922

AUSTRALIAN MONEY EXCHANGE PTY LTD (IN LIQUIDATION) ACN 090 388 257	Plaintiff
-and-
PR FINANCE GROUP LIMITED (IN LIQUIDATION) ACN 109 299 390
v
JONATHAN HUW ELFYD LLEWELLYN AND OTHERS (in accordance with the schedule)	Defendant

S ECI 2019 03619

KEYBRIDGE CAPITAL LTD (ACN 088 267 190)	Plaintiff
-and-
MB FINANCE PTY LTD (ACN 123 051 730)
v
JONATHAN HUW ELFYD LLEWELLYN AND OTHERS (in accordance with the schedule)	Defendant

---

JUDGE:	Delany J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2023
DATE OF RULING:	11 October 2023
CASE MAY BE CITED AS:	Australian Money Exchange Pty Ltd (in liq) v Llewellyn; Keybridge Capital Ltd v Llewellyn
MEDIUM NEUTRAL CITATION:	[2023] VSC 601

---

PRACTICE AND PROCEDURE – Applications to dismiss for want of prosecution – Three proceedings issued late in limitation period – Obligation to move with greater speed – Delays due to multiple changes in plaintiffs’ legal representation – Plaintiffs failed to file trial evidence over a two year period as per previous orders – Limited responsive evidence only filed under threat of self-executing order – Prejudice – Events 10-13 years old – Failure to provide security for costs – Failure to engage with conflict of interest issues – Failure to comply with overarching obligation to minimise delay – Interests of justice – Balancing the right to a fair trial – Applications refused on conditions – Listed company required to undertake to pay costs – Plaintiffs’ primary trial evidence limited to existing evidence and documents – Plaintiffs not to amend pleadings – Plaintiffs to identify causes of action pressed and relief sought in each proceeding – If any condition is not satisfied within time proceeding dismissed – Civil Procedure Act 2010 (Vic), ss 7, 9, 25, 47-49 – Sullivan v Greyfriars Pty Ltd [2015] VSCA 196; Spitfire Nominees Pty Ltd v Hall & Thompson (a firm) [2001] VSCA 245 applied; Shellard v Orlanski [2001] VSCA 14; Cappelleri v Cappelleri [2020] VSC 306 referred to.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs in proceedings S ECI 2019 02922 and S ECI 2019 03619	Mr M A Robins KC with Mr J Forrest	Allen & Overy
For the Fifth Defendant in proceeding S ECI 2019 02922 and the Fourth Defendant in proceeding S ECI 2019 03619	Ms V Bell	CJM Lawyers
For the Seventh Defendant in proceeding S ECI 2019 02922	Mr R Ashton KC	Clyde & Co
No appearance for the remaining Defendants

TABLE OF CONTENTS

The proceedings and the applications........................................................................................... 1

The background facts alleged.......................................................................................................... 3

Proceeding 2922: The issues............................................................................................................. 5

Proceeding 3619: The issues............................................................................................................. 7

The current state of the proceedings.............................................................................................. 9

The principles................................................................................................................................... 11

Changes in legal representation.................................................................................................... 16

Delays in the conduct of the litigation........................................................................................ 17

Proceeding 3619................................................................................................................................ 25

Security for costs.............................................................................................................................. 25

Conflicts and abuse of process...................................................................................................... 27

Prejudice............................................................................................................................................ 29

Merits submissions.......................................................................................................................... 30

Consideration.................................................................................................................................... 30

Costs.................................................................................................................................................... 39

Orders................................................................................................................................................. 40

HIS HONOUR:

The proceedings and the applications

Three related proceedings were issued in 2019. On 22 October 2021, I made orders that the proceedings be heard and determined together and that evidence in one proceeding be evidence in each of the other proceedings (‘October 2021 Orders’). Nearly two years on none of the proceedings are ready for trial.

The three proceedings were listed for directions on 4 August 2023. In one of the proceedings there was no appearance for either party. In all three proceedings, the solicitors on record for the plaintiffs had filed notices of ceasing to act on the previous day. The plaintiffs in those proceedings were represented at the hearing by a solicitor from the firm previously on the record who appeared as matter of courtesy only. What occurred on 4 August 2023 provides the context for the hearing on 1 September 2023 and these reasons.

On 4 September 2023, proceeding S ECI 2019 02921 (‘proceeding 2921’) in which Keybridge Capital Ltd (‘Keybridge’) and its subsidiary company, MB Finance Pty Ltd (‘MB Finance’), are the plaintiffs and PR Finance Group Limited (in liquidation) (‘PR Finance’) is the defendant was dismissed on the Court’s own motion. There was no appearance by either party to that proceeding at the hearing on 1 September 2023. The dismissal followed orders on 4 August 2023 that foreshadowed its dismissal and the receipt of an email from the liquidator of PR Finance stating that there were no funds in the liquidation to defend the proceeding.

On 4 August 2023, I made orders in the related proceedings, being proceeding S ECI 2019 02922 (‘proceeding 2922’) and S ECI 2019 03619 (‘proceeding 3619’), that the defendants have leave to apply for summary dismissal on no less than 3 business days’ notice to the plaintiffs and that the plaintiffs file and serve any affidavits in response to any such application on the third business day after service of any such application. I made orders for submissions. The 4 August 2023 orders recorded that, if an application for dismissal was made and if the plaintiffs failed to file responsive material, the Court would immediately dismiss the proceeding of its own motion.

On 7 August 2023, an application was made for the dismissal of both proceedings by way of an affidavit of Kent Bruce James (‘Mr James’), the fifth defendant in proceeding 2922 and the fourth defendant in proceeding 3919. A summons was also filed in proceeding 2922 by the seventh defendant, The Underwriting Members of Lloyd's syndicate 2468 for the 2012 year of account subscribing to the policy LAUDO-0000000477 (‘the Lloyd’s Syndicate’), on 9 August 2023 seeking that proceeding 2922 be struck out for want of prosecution.

On 10 August 2023, the plaintiffs in proceedings 2922 and 3619 appointed new solicitors. Evidence and submissions in opposition to the applications for dismissal were filed on behalf the plaintiffs in accordance with the 4 August 2023 orders.

These reasons concern the applications by the fifth and seventh defendants in proceeding 2922 and by the fourth defendant in proceeding 3619, each of whom are legally represented, to dismiss those proceedings for want of prosecution. The other defendants in those proceedings are not legally represented. Generally those defendants have not taken an active part in the proceedings, but they remain parties.

The subject matter of the three proceedings concern events that took place between May 2011 and 30 June 2014.

The plaintiffs in proceeding 2922 are Australian Money Exchange Pty Ltd (in liquidation) (‘AMX’) and PR Finance. As noted above, until its dismissal, PR Finance was also the defendant in proceeding 2921. The same solicitors who had acted for PR Finance in proceeding 2922 had the conduct of proceeding 2921 against PR Finance.

The defendants in proceeding 2922 include former directors of AMX. Jonathan Huw Elfyd Llewellyn (‘Mr J Llewellyn’) is the first defendant, Cameron Ross James (‘Mr C James’) the second defendant, Peter Elfyd Llewellyn (‘Mr P Llewellyn’) the third defendant, Roderick Wickham James (‘Mr R James’) the fourth defendant and Ronald Francis Tong (‘Mr Tong’) the sixth defendant. As noted above, Mr James is the fifth defendant and the Lloyd’s Syndicate is the seventh defendant.

The plaintiffs in proceeding 3619 are Keybridge and MB Finance. The defendants are Mr P Llewellyn, Mr R James, Mr Tong, and Mr James. The first two defendants were, at various times, directors of AMX and PR Finance, and joint managing directors of the PR Finance Group of companies, being AMX and various other entities of which PR Finance was the parent company (’PR Finance Group’). Mr Tong was a director of PR Finance until August 2013. Mr James was the company secretary of AMX and of its parent company, PR Finance. From May 2011, Mr James held the position of legal counsel of the PR Finance Group.

The background facts alleged

The proceedings each concern AMX. The statements of claim make various allegations concerning AMX and its dealings. Set out below are some key aspects of the matters alleged.

In 2011-2013, AMX was in the business of providing ‘short term credit loans’, somewhat akin to payday loans as they are now known. From around 2007, Keybridge provided loan facilities to PR Finance and MB Finance held security over the assets of PR Finance and the PR Finance Group, including AMX.

On 27 May 2011, ASIC notified AMX that it may be engaging in unlicensed activities in contravention of the National Consumer Credit Protection Act 2009 (Cth) (‘the NCCP Act’). AMX did not hold an Australian Credit Licence under that Act.

On various dates between 26 April 2012 and 23 August 2012, ASIC issued notices to AMX under s 266 of the NCCP Act requiring it to produce books for inspection. ASIC relied on asserted suspected breaches by AMX of the NCCP Act and the National Credit Code (‘the Code’).

On 20 March 2013, ASIC requested AMX provide it with copies of any advice held by AMX concerning whether its ‘short term credit loans’ were loans that were exempt under the Code or whether AMX required an Australian Credit Licence.

On 21 March 2013, a firm of solicitors, Carter Newell Lawyers, is alleged to have advised Mr P Llewellyn, at that time a director of PR Finance, and Mr James, among others, that AMX was required to hold an Australian Credit Licence.

In around March 2013, at about the same time communications with ASIC were taking place, PR Finance defaulted on its loan obligations with Keybridge.

On 13 May 2013, PR Finance issued a scheme booklet and later Keybridge and PR Finance entered into a scheme of arrangement.

On 21 May 2013, another firm of solicitors, HWL Ebsworth, advised AMX that the Code applied to the credit activities of AMX.

On 24 June 2013, ASIC issued a further notice under s 266 of the NCCP Act to AMX.

On 11 July 2013, PR Finance issued a supplementary scheme booklet.

On 12 August 2013, 95.7% of the votes cast by 96.6% of the shareholders in PR Finance Group approved entry into the scheme of arrangement. Final approval of the scheme was obtained from the Federal Court on 14 August 2013. Following the approval of the scheme, Keybridge paid approximately $1.5 million to, and allotted 2.5 million ordinary shares in Keybridge to, the PR Finance shareholders in exchange for 100% of the shares in PR Finance.

On 16 August 2013, Mr J Llewellyn, Mr C James, Mr R James and Mr James resigned as directors and/or company secretary of each of PR Finance and AMX, Mr Tong resigned as director of PR Finance, and Mr P Llewellyn resigned as director of AMX. On 23 September 2013, Mr P Llewellyn resigned as a director of PR Finance. Mr Bolton, Mr Brown and Mr Sormann were appointed as directors of AMX and PR Finance in their place, those persons also being directors of Keybridge.

There are internal inconsistencies within the pleadings concerning the positions held by the defendants, and their resignations from those positions. By way of example, as noted above, it is alleged in proceeding 2922 that, on 16 August 2013, Mr J Llewellyn, Mr C James, Mr R James and Mr James ‘resigned as directors and company secretary of each of PR Finance … and AMX’. However, earlier in the same pleading, Mr J Llewellyn is alleged to have been a director of AMX until 25 June 2013, and is not alleged to have been a director of PR Finance. The same is the case for Mr C James. Mr James is alleged to have been company secretary of PR Finance until 16 August 2013, but company secretary of AMX until 23 September 2013.

On 1 October 2013, ASIC notified the new directors of AMX that it was conducting an investigation.

The Keybridge associated parties allege that, after obtaining advice and reviewing the effect on solvency of AMX changing its business operations so as to comply with the ASIC requirements, the new directors resigned and, on 21 October 2012, appointed an administrator, Gideon Isaac Rathner, to PR Finance, AMX and the other companies in the PR Finance Group.

Approximately four months later on 14 February 2014, ASIC issued an infringement notice to AMX in the amount of $42,500 in accordance with s 331 of the NCCP Act and regulation 39 of the National Consumer Credit Protection Regulations 2010 (Cth).

On 8 April 2014, ASIC notified AMX of its concerns relating to AMX’s conduct.

On 19 May 2014, Mr Rathner became the liquidator of all of the companies in the PR Finance Group including PR Finance and AMX.

On 30 June 2014, the AMX business was sold for $1,750,000.

Proceeding 2922: The issues

The third further amended statement of claim dated 16 August 2021 alleges that, by reason of breaches by the defendants (other than the Lloyd’s Syndicate) of duties of care and diligence, AMX suffered loss and damage. AMX and PR Finance allege that they are entitled to recover damages, equitable compensation for breach of fiduciary duty and/or statutory compensation under s 1317H of the Corporations Act 2001 (Cth) (‘Corporations Act’) particularised in the amount of $6,870,810.61.

$6,870,810.61 is said to represent the liability owed by AMX to creditors in respect of allegedly unlawful cheque cashing fees charged by AMX to consumers from 1 July 2011 to 20 October 2013. The particulars of damage include that on 2 May 2016 Mr Rathner as the liquidator of AMX admitted those amounts as debts or claims against AMX without formal proof of claims being lodged as contemplated by regulation 5.6.47 of the Corporations Regulations 2001 (Cth). The pleading asserts that further particulars of loss and damage and of any loss of profits will be provided following discovery and prior to trial.

Affidavits filed in the proceeding show that, after his appointment, Mr Rathner took legal advice. He concluded that AMX had valid claims against the directors of AMX in respect of what he described as ‘illegal fees’ charged by AMX in at least the period 1 July 2011 to 20 October 2013. In March 2016, in his role as liquidator of AMX, Mr Rathner admitted 73,456 claims on an informal basis on behalf of 9,651 AMX customers who were charged what he described as ‘illegal fees’. Mr Rathner provided details of the claim process and responded to criticisms concerning the manner in which he undertook those tasks in his affidavit dated 14 April 2023.

In its further amended defence dated 10 September 2021, the Lloyd’s Syndicate does not admit that AMX would have been able to satisfy ASIC’s requirements and obtain an Australian Credit Licence. It alleges that in any case AMX did not and will not suffer any ‘loss and damage’ in accounting to creditors for charges illegally made or money had and received. It alleges that no claims have been made upon AMX by creditors in any form in respect of the cheque cashing fees. The Lloyd’s Syndicate pleads additional defences, the substance of which is that it has no obligation to indemnify under the policies entered into between it and PR Finance.

Mr James relies on his further amended defence dated 25 November 2021, filed on his behalf and on behalf of the first and third defendants (Mr J Llewellyn and Mr P Llewellyn respectively).

The defence denies breach of the duties alleged. It admits there was a risk that ASIC would make an adverse finding but alleges that risk was being managed and mitigated by issuing ASIC with correspondence as and when necessary and by ASX continuing to seek and obtain ‘Advices’ from various legal firms between 14 April 2010 and 28 June 2013. The defence alleges that Mr J Llewellyn, Mr P Llewellyn and Mr James discussed the Advices during board meetings and during subsequent internal communications. It alleges that those persons satisfied themselves that AMX could continue to operate under the exemption provided for in the Code until ASIC provided otherwise, and, even then, ASIC’s view was not beyond challenge or review. The defence denies loss and damage. It alleges there is no ‘liability owed’ by AMX to creditors in respect of unlawful cheque cashing fees as alleged. There are other defences pleaded which is unnecessary to detail.

Proceeding 3619: The issues

The amended statement of claim is dated 21 November 2019. Keybridge and MB Finance allege that they suffered loss and damage by reason of misleading and deceptive conduct engaged in by PR Finance of which the defendants had knowledge and in which they participated. Contraventions of s 18 of the Australian Consumer Law (‘ACL’), as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth), and s 1041H of the Corporations Act are alleged.

Amongst the complaints made by the plaintiffs against the defendants is that neither the legal advice from Carter Newell about non‑compliance with statutory obligations and the Code, the subsequent advice from HWL Ebsworth to similar effect to the Carter Newell advice, nor previous advices were made available to Keybridge, either in the due diligence data room or otherwise. It is alleged that the defendants did not disclose that AMX had provided the previous advices to ASIC. Nor was the ongoing risk as a result of ASIC’s investigations disclosed.

Keybridge alleges that it relied on representations by PR Finance when it executed the scheme implementation agreement and proceeded with the 30 March 2013 scheme agreement to effect the acquisition by Keybridge of 100% of the shares in PR Finance, with the result that Keybridge and MB Finance suffered loss and damage.

The particulars of loss and damage in paragraph 64 of the amended statement of claim include the alleged reduction in value of the MB Finance security as a result of its enforcement of that security on 21 October 2013 and the cost to Keybridge associated with the transaction. The cost associated with the transaction is alleged to include payment of approximately $1.5 million to PR Finance shareholders on 15 August 2013, the value of 2.5 million shares in Keybridge, and the cost and expenses incurred in obtaining Court approval, approximately $490,000. As to the reduction in the value of the MB Finance security, the losses are alleged to include costs associated with MB Finance’s enforcement of its security, including the cost of the administrator’s and liquidator’s remuneration in respect of the PR Finance Group, approximately $700,000, the administrator’s and liquidator’s legal costs and expenses, exceeding $200,000, and trading losses for the AMX business of approximately $2,200, as well as the reduction in the value of MB Finance’s security. Further particulars are to be provided prior to trial.

The defence of Mr James, and that of the first and third defendants (Mr P Llewellyn and Mr Tong respectively), is dated 14 December 2020. Accepting the risk of a determination by ASIC, reliance is placed on the ‘Advices’ received from others and the assessment of the risk both internally and externally by professional advisors. The allegation by Keybridge and MB Finance that the due diligence data room did not contain copies of any of the ASIC notices is denied. The defence alleges that notices and documents concerning ASIC and its interactions with AMX were contained in the due diligence data room. The allegations that the previous advices, the Carter Newell advice and the HWL Ebsworth advice were not made available to Keybridge are denied. The allegations of misleading and deceptive conduct and of other statutory contraventions are denied. The defendants allege the claims for contraventions of s 18 of the ACL and s 1041H of the Corporations Act are statute barred. The allegations of loss and damage are denied. It is unnecessary to detail the other matters relied on in the defence except to note that they include the alleged receipt by Keybridge of a $12 million franking credit for the 2013 financial year – a plea in response to the loss allegations made by Keybridge.

The current state of the proceedings

Proceedings 2922 and 3619 have limped along since they were issued in 2019, nearly six years after the most recent events to which the claims relate. Mr James and the Lloyd’s Syndicate contend that proceedings 2922 and 3619 ought to be dismissed because there has been intentional and contumelious default amounting to abuse of process and/or there has been inordinate and inexcusable delay giving rise to a substantial risk that it is not possible to have a fair trial of all issues and/or causing serious prejudice to the defendants.

The October 2021 Orders (in proceeding 2922) provided for further pleadings by 30 November 2021, further discovery by 17 December 2021, the plaintiffs’ expert evidence by 18 February 2022 and the defendants’ expert evidence by 1 May 2022. The October 2021 Orders provided for the trial of all three proceedings to take place together with evidence in each to be evidence in the other proceedings, and included an order for a joint trial plan to be filed by 6 May 2022. Directions were next to take place on 13 May 2022. The October 2021 Orders were made on the papers with a notation in other matters:

The Court informed the parties … that it was appropriate that the Proceedings be listed for further directions in 2022 before an order fixing the Proceedings for trial be made.

Notwithstanding the October 2021 Orders, none of the proceedings are either ready or have been fixed for trial.

On 3 March 2023, self-executing orders were made in proceeding 2922 including as follows:

1.The time for compliance with paragraph 3 of the Order of the Honourable Justice Delany made on 5 August 2022 (‘Previous Order’), being the date by which the plaintiffs are to file and serve:
a.by way of affidavit, any evidence in chief on which they intend to rely;
b.any expert evidence on which they intend to rely; and …

be extended to 14 April 2023.
…
4.If the plaintiffs fail to comply in full with paragraph 3 of the Previous Order as extended by paragraph 1 of this Order:
a.the Third Further Amended Writ be struck out in its entirety;
b.subject to paragraph 4(c) of this Order, the proceeding will stand dismissed; and
c.the defendants will have leave by 4:00 pm on 28 April 2023 to make any application for such relief as they may be advised, including any application for costs and any application for recourse to the security provided in relation to costs pursuant to paragraph 4 of the Order of the Honourable Justice Sifris made on 12 June 2020 (‘2020 Order’).

Despite those self-executing orders which extended the date for the filing of all primary evidence to be relied on by the plaintiffs to 14 April 2023, with the exception of an affidavit from Mr Rathner dated 14 April 2023 to be relied on at trial, no affidavits or expert reports were filed on behalf of the plaintiffs in proceeding 2922.

At the hearing on 1 September 2023, AMX and PR Finance were represented by senior and junior counsel, both new to the proceedings. They submitted that proceedings 2922 and 3619 are at a relatively advanced stage.

When the question of further steps needed on behalf of the plaintiffs prior to trial was explored, I was informed that it was anticipated there would be evidence from Mr Bolton and possibly other Keybridge-appointed directors in proceeding 3619 directed to reliance and other issues.

The plaintiffs accepted that it would be necessary to file expert evidence in proceeding 3619 in support of particulars of loss in paragraph 64 of the pleading.

The defendants have not yet put on any lay evidence in either of the proceedings. The October 2021 Orders provided for that evidence to come after the plaintiffs’ evidence. In the course of the hearing, I was informed that the plaintiffs may wish to lead evidence in reply in response to fraudulent non‑disclosure allegations in the Lloyd’s Syndicate defence in proceeding 2922.

In his further amended defence in proceeding 2922, Mr James makes positive allegations about discussions and meetings that occurred and that were attended by him in 2013, including at paragraphs 49(c), 67(c) and 73(d) of the defence. The meetings and discussions to which the defence refers took place over ten years ago.

The defence in both proceedings refers to the provision of the ‘Advices’ between 14 April 2010 and 28 June 2013 and the consideration and discussion of the Advices by Mr James and others. If those matters are contentious, Mr James and any other witnesses whose evidence is sought to be relied upon by any of the defendants in relation to those events will be required to give evidence of meetings and discussions that took place between ten and thirteen years ago.

The principles

There is no dispute in relation to the principles to be applied. It is convenient to reproduce the following paragraphs from the submissions filed on behalf of Mr James, the accuracy of which is accepted by the plaintiffs:

4.The court has an inherent jurisdiction to dismiss proceedings for want of prosecution.[1] Section 9 of the Civil Procedure Act 2010 (Vic) give statutory emphasis to the timely resolution of proceedings, by providing that:
[1]See, eg, Duncan v Lowenthal [1969] VR 180 at 182.
“In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects –
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for -
(i)the fair and just determination of the real issues in dispute; and
(ii)the preparation of the case for trial;

(f)the timely determination of the civil proceeding;”

5.It is well established that it is appropriate to dismiss a proceeding for want of prosecution where the court is satisfied either that:[2]
[2]Birkett v James [1978] 2 All ER 801. See also, eg, Bridge & Marine Engineering Pty Ltd v Taylor [2004] VSC 534; Slaveska v Elenchevski [2013] VSCA 283.
(a)that the default of the plaintiff has been intentional and contumelious, for example, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court (first limb); or
(b)that there has been inordinate and inexcusable delay on the part of the plaintiff or his or her lawyer, and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the questions in the proceeding or is such as likely to cause or to have caused serious prejudice to the defendant as between himself or herself and the plaintiff or as between himself or herself and a third party (second limb).

6.It is the second limb that is relevant in this case.
7.In Batistatos v Roads and Traffic Authority of New South Wales,[3] Gleeson CJ, Gummow, Hayne and Crennan JJ confirmed that there is no need to demonstrate oppressive conduct on the part of the plaintiff, rather that ‘attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by the lapse of time’.
8.In Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells, the Court of Appeal identified that the second limb involves the consideration of three key elements:
(i)whether there has been inordinate delay;
(ii)whether any such delay is inexcusable; and
(iii)whether the defendant has demonstrated prejudice arising, or likely to arise from such delay.

[3](2006) 226 CLR 256, [69].

As the submissions filed on behalf of Mr James note, the critical consideration is whether the plaintiffs’ conduct has caused, or is likely to cause, injustice to the defendants. This will occur when there is a substantial risk that it will not be possible to have a fair trial of the proceeding because of inordinate and inexcusable delay.[4] Ultimately, an order for dismissal is appropriate only when the justice of the occasion demands it.[5]
[4]Spitfire Nominees Pty Ltd v Ducco [1998] 1 VR 242, 248 (Hedigan AJA, Winneke P and Brooking JA agreeing).
[5]Alginates (Aust) Pty Ltd v Thomson & Carroll Pty Ltd [1970] VR 570, 574 (Smith J).

While the plaintiffs add their own observations concerning the principles, it is unnecessary to reproduce them here.

During the hearing, attention was directed to the statement by Ormiston JA in Shellard v Orlanski[6] concerning the need on such applications to identify both the period of delay after the proceedings were instituted, and to isolate the cause or causes of that delay:[7]

2.… Of course, in calculating the period of inordinate delay one cannot merely work out a total by, as it were, turning on the tap and turning it off again in order to make a fair calculation. There must be some broader appreciation of the delay and the causes for it. So, for example, one cannot look merely at the periods of months during which the appellants unreasonably failed to take particular steps in relation to the discovery and inspection process in this case. The Court is entitled to take a reasonably benevolent view of the response of the party not in default and to take account of any consequential delay which arises from default in relation to one element of the litigation process. But that does not mean that the action can be put to sleep, nor does it mean that one cannot take account of other genuine attempts by a plaintiff to bring the proceeding on to trial. When one has made a fair assessment of what delay can be characterised as inordinate and inexcusable, then, of course, it is essentially a matter of discretion as to whether that delay justifies an order striking out the proceeding for want of prosecution.

[6][2001] VSCA 147.

[7]Ibid [2].

In Spitfire Nominees Pty Ltd v Hall & Thompson (a firm) (‘Spitfire Nominees’),[8] Charles JA, with whom Brooking and Ormiston JJA agreed, stated as follows:[9]

21In support of the plaintiffs’ arguments as to delay reliance was placed on Spitfire Nominees v Ducco for the proposition that a judge cannot simply gross up the period of delay as elapsed time, but must analyse the steps and set out the length of the net delay occasioned, and the prejudice, if any, which had been sustained as a consequence of this, rather than the general elapsing of time. In Masel & Ors v Transport Industries Insurance Co. Ltd & Ors the Appeal Division of the Supreme Court said that delay is relative and must be seen in context when considering whether the excuses for the delay given by the plaintiff are credible and satisfactory; the size and complexity of the action are relevant for these purposes; furthermore in considering these matters one must also look at the extent of the diversion created by other parties to the litigation either directly or through their lawyers. Another relevant factor mentioned in Masel is the question whether the processes of the Court have contributed to the delay. Then in McKenna v McKenna McGarvie J referred to the proposition that a defendant, by taking steps in an action which caused a plaintiff to incur further cost, may thereby preclude himself from relying on prejudice to him which flows from the plaintiff’s past delays. But in McKenna McGarvie J, correctly in my view, had held that an application to dismiss for want of prosecution is not to be decided by a formula, and that the judge is never precluded from looking at and taking into account the reality of the whole history of the case. …

[8][2001] VSCA 245.

[9]Ibid [21] (citations omitted).

Delay prior to the issue of proceedings is also relevant. In Spitfire Nominees, Charles JA said further:[10]

24.At the outset in considering the plaintiffs’ arguments on delay, it must be remembered that the plaintiffs had waited four years before issuing the writ after the cause of action was said to have arisen. There had been very little attempt by the plaintiffs to explain this delay … In any event, the judge’s approach to the question of delay in issuing the writ was, I think, clearly correct. Her Honour did not treat the plaintiffs as solely responsible for the delay in issuing the writ. In the process of assessing whether the later delay was inordinate and inexcusable, her Honour did not include the four years before issuing the writ in her assessment … Her Honour’s approach to delay before the issue of the writ, in accordance with authority, was that a plaintiff who chooses to wait until late in the limitation period to issue must be expeditious thereafter. As Tadgell and Ormiston JJ said in Bishopsgate Insurance Australia Ltd. (In Liq.) v. Deloitte Haskins & Sells, plaintiffs are obliged to move with greater speed if they have left the issue of proceedings until very late in the limitation period.

[10]Ibid [24] (citations omitted).

Older cases to which attention was directed pre‑date the Civil Procedure Act 2010 (Vic) (‘the CPA’). More recently, in Sullivan v Greyfriars Pty Ltd (‘Sullivan’),[11] Whelan and McLeish JJA made the following observations about the impact of the CPA on the approach to be taken to an application to dismiss a proceeding for want of prosecution, in that case, an application for leave to appeal:[12]

21.The inherent jurisdiction to dismiss a proceeding (including an appeal or an application for leave to appeal) for want of prosecution is well‑established and is recognised in r 24.05 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’). It has been held that the power is to be exercised very sparingly and that it must be shown that there has been inordinate and inexcusable delay in complying with the Rules, and that the defendant or respondent is likely to be seriously prejudiced as a result.
22.However, the principles which are described above do not appear to us to be sufficient to deal with the present case, for three reasons. First, the matter being one in the discretion of the Court, the principles cannot in any event be treated as determinative or exhaustive. Secondly, the requirements for summary dismissal of an appeal are of their nature likely to be more stringent than those for summary dismissal of an application for leave to appeal, in respect of which a range of discretionary considerations are potentially relevant. The principles as stated are therefore unlikely to exhaust the matters of which account may be taken in respect of an application for leave to appeal. Thirdly, and most significantly, the Court is now subject, including when exercising its inherent jurisdiction, to the statutory obligation in s 8 of the Civil Procedure Act 2010 to seek to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
23.Section 8 casts a new light on the inherent jurisdiction. It gives statutory emphasis to the importance of the timely resolution of proceedings, which in turn underscores the importance of compliance with orders of the Court for the management of a proceeding. But it also widens the range of matters to which consideration must be given. Even in cases where inordinate, inexcusable and prejudicial delay are not established, failure to comply with the orders of the Court may therefore none the less warrant summary dismissal. In light of s 8, the merits of the proceeding that is sought to be dismissed may bear on the exercise of the Court’s discretion. That is especially so in this case because the Court is dealing with an application for leave to appeal rather than an appeal brought as of right.

[11][2015] VSCA 196.

[12]Ibid [21]-[23] (citations omitted).

While not specifically referred to in Sullivan, I consider the overarching obligation in s 25 of the CPA which binds both the parties and their legal practitioners to be of particular significance for an application such as the present. That section provides:

25       Overarching obligation to minimise delay
For the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the overarching obligations apply must use reasonable endeavours in connection with the civil proceeding to—
(a)       act promptly; and
(b)       minimise delay.

Changes in legal representation

Relying on Spitfire Nominees, senior counsel for the plaintiffs submitted that it is necessary to calculate the net delay caused by the plaintiffs. Further, that while regard may be had to the delay in bringing the proceeding, the focus of attention must be on what has occurred within the proceeding itself.

It was submitted that the real complaint by Mr James and the Lloyd’s Syndicate concerns the fact that the plaintiffs have changed solicitors on a number of occasions and that this has caused delays. Adopting the ‘net delay’ approach, the total period of delay attributable to the plaintiffs changing solicitors following the issue of proceedings is between approximately 90 and 112 days.

The original solicitors for the plaintiffs were Macpherson Kelley. There was a 15 day gap between correspondence sent to that firm in relation to the provision of further security for costs and the appointment of Gadens as replacement solicitors on 15 July 2021. There was a 37 day interval between the date of an earlier letter in which Macpherson Kelley proposed a further adjournment of the directions hearing due to COVID-19 developments in Melbourne and the appointment of Gadens as solicitors in their place.

The next delay associated with a change in legal representation was a period of approximately two months between 21 December 2022 when Gadens filed a notice of solicitors ceasing to act and 13 February 2023 when they were replaced by Quinn Emanuel. Upon the appointment of Quinn Emanuel, that firm informed the Court and the parties that, while it had been appointed to act, it did not have access to files held by the previous solicitors. The directions hearing scheduled for 17 February 2023 was adjourned to 3 March 2023 to enable Quinn Emanuel to obtain and review the file. The delay occasioned by those events amounted to 14 days.

On 3 August 2023, on the eve of the previous directions hearing, Quinn Emanuel filed a notice of ceasing to act. Allen & Overy were appointed as the new solicitors for the plaintiffs on 10 August 2023, seven days after Quinn Emanuel had ceased to act.

In opposition to the applications, the plaintiffs referred to Cappelleri v Cappelleri (‘Cappelleri’),[13] a case that involved changes in the plaintiffs’ legal representation. Derham AsJ noted in that case that the real question is whether there was any prejudice, actual or potential, from the changes in representation that occurred.[14]
[13][2020] VSC 306.
[14]Ibid [72]–[80].

The plaintiffs relied also on Nelson v Geary (‘Nelson’),[15] in which the defendants did not make any submissions nor provide any evidence as to specific prejudice, but relied upon the general effluxion of time – in that case, a period of over eight years since the events the subject of the claim and over two years since issue of the proceeding.[16] Ierodiaconou AsJ found that:

24 I do not consider the effluxion of time from the issue of the proceedings to be serious prejudice in the circumstances of this proceeding. Whilst it will cause some prejudice to the defendants, I am not satisfied they have established it is such that there is a substantial risk that it will not be possible to have a fair trial. I have also considered the general effluxion of time since Black Saturday and do not consider that it gives rise to such a risk.

[15][2017] VSC 228.

[16]Ibid [22]-[23].

Relying on Nelson, the plaintiffs submitted that it is not the passage of time that is the prejudice of itself – it is what, if any, impact that has on the other party of having a fair trial on its merits. The plaintiffs submitted that neither Mr James nor the Lloyd’s Syndicate adequately engaged with that question.

Delays in the conduct of the litigation

The problem with the plaintiffs’ analysis is that the parties bringing the applications do not solely rely on the changes in legal representation to found their applications. They rely on the delay that occurred before the proceedings were issued and upon the failure of the plaintiffs to prosecute the proceedings with expedition after they were issued in 2019. As held in Spitfire Nominees, plaintiffs are obliged to move with greater speed if they have left the issue of proceedings until very late in the limitation period.

The affidavits by Ms Barron, the solicitor for the Lloyd’s Syndicate, dated 14 February 2023, 24 May 2023 and 8 August 2023 filed in proceeding 2922 detail the numerous delays that have occurred since the proceedings were issued. The delays include adjournments of directions hearings and extensions of time for the completion of interlocutory steps at the request or instigation of the plaintiffs. The affidavits by Ms Barron detail how tardy the plaintiffs have been to respond to security for costs requests and in attending to the updated provision of security for costs as agreed.

The history of proceeding 2922, drawn both from Ms Barron’s affidavits and from the Court file, includes the following:

(a) Directions on 7 May 2021 were adjourned until 11 June 2021, then to 16 July 2021; initially because of the plaintiffs’ foreshadowed amendment to its pleadings, but with an amended writ and statement of claim not being filed until 16 August 2021. Gadens filed a notice of ceasing to act on 15 July 2021, the day before the 16 July 2021 directions hearing.

(b) Directions listed on 10 September 2021 were adjourned to 22 October 2021.

(c) On 22 October 2021, comprehensive orders to which reference was earlier made were made following receipt of proposed orders to that effect consented to by the plaintiffs and the first, third, fifth and seventh defendants in proceeding 2922, intended to place all three proceedings in a position to be ready for trial by May 2022.

(d) On 4 May 2022, the Lloyd’s Syndicate proposed consent orders, agreed to by the plaintiffs and various defendants, extending the time for service of its expert evidence to 20 May 2022 and extending the date for provision of the joint trial plan following conferral until 3 June 2022. An order to that effect was made on 12 May 2022 and the 13 May 2022 directions hearing was adjourned until 10 June 2022.

(e) On 6 June 2022, again at the instigation of the Lloyd’s Syndicate, extensions of time for its expert evidence until 9 June 2022 and for conferral and the provision of a joint trial plan by 1 July 2022 were agreed to by the plaintiffs. Orders were made on 9 June 2022 adjourning the directions hearing to 5 August 2022.

(f) The Lloyd’s Syndicate filed two expert reports, one from Mr Park on 10 June 2022 and one from Mr Symonds on 13 June 2022.

(g) On 2 August 2022, the Lloyd’s Syndicate filed submissions in advance of the 5 August 2022 directions hearing. Those submissions focused on the failure of the plaintiffs to ready the three cases for trial and on unresolved conflicts of interest in legal representation. They referred to the plaintiffs having an obligation to ensure that the claims are progressed in a timely manner, in accordance with the plaintiffs’ overarching duty to the Court to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute:[17]
[17]Pursuant to s 10, Civil Procedure Act 2010 (Vic).

1.2We do not consider that the three proceedings, S ECI 2019 02921, S ECI 2019 02922 and S ECI 2019 03619 are ready to be set down for trial, despite having made previous attempts to have the Plaintiffs address a number of outstanding procedural irregularities. As a result, we were unable to consent to the proposed Orders circulated by the solicitors for the Plaintiffs in each proceeding on 26 July 2021.
…
2Status of Proceedings
2.1Our client, the seventh defendant, … Underwriters … is only a party to the 02922 proceedings. As such, following receipt of the draft orders from the Plaintiff’s solicitors, we sought their response to the following queries:
(a)Is PR Finance Group Limited (in liquidation) (PRF) represented in the 02921 proceedings, and if so, by who?
(b)Has PRF filed a defence in the 02921 Proceedings?
(c)Have any of the parties to the 02921 or 03619 proceedings completed discovery?
(d)Do the Defendants to the 03619 proceedings have legal representation?
(e)Have any other steps been taken in the 03619 proceedings since the Defendants filed a joint defence on 14 December 2020?

2.2We were advised:
(a)in relation to the 02921 proceedings:
(i)PR Finance was unrepresented;
(ii)it had not filed a defence; and
(iii) discovery had not been completed between the parties.

Whilst not specifically dealt with in the Plaintiff’s solicitors’ correspondence, it seems implicit that no expert or lay evidence has been exchanged.
(b)in relation to the 03619 proceedings:
(i)all but the fourth defendant was unrepresented;
(ii)only the plaintiffs and the fourth defendant had completed discovery; and
(iii)no other steps had been taken in the proceedings.

2.3The consent orders forwarded by the Plaintiffs do not provide:
(a)in the 02921 proceeding for the:
(i)defendant to file and serve its defence;
(ii)the parties to complete discovery;
(iii)the parties to file and serve any expert or lay evidence, or evidence in reply; nor
(iv)for any material or whatsoever nature to be provided to the Court in advance of a trial.

(b)in the 03619 proceedings for the:
(i)remaining defendants to provide their disclosure;
(ii)the parties to file and serve any expert or lay evidence, or evidence in reply; nor
(iii)for any material or whatsoever nature to be provided to the Court in advance of a trial.

…
2.5Having brought these claims, the onus remains on the Plaintiffs to not only prove their claims, but to ensure that the claims are progressed in a timely manner, in accordance with the Plaintiffs’ overarching duty to the Court to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.
2.6Our client is not a party to the 02921 and 03619 proceedings, however, the 22 October 2021 Orders requiring the three matters be heard together mean that our client’s ability to obtain a fair and expeditious trial in the 02922 proceedings is being prejudiced by the continuing delays and the failures by the Plaintiffs in the other two proceedings to take any, or any meaningful steps, to address same.
3Evidence
3.1In the 02922 proceedings Gadens acts on behalf of both plaintiffs - PRF and Australian Money Exchange Pty Ltd (in liquidation) (AMX).
3.2In the 02921 proceedings however, whilst Gadens once again acts on behalf of the plaintiffs, the plaintiffs to that matter are Keybridge Capital Ltd (Keybridge) and MB Finance Pty Ltd (MBF).
3.3Keybridge and MBF are pursuing PRF in that matter inter alia for alleged misleading and deceptive conduct by way of misrepresentations contained in the ‘supplementary scheme booklet’ and in failing to upload relevant advices and documents to the Due Diligence Data Room.
3.4In acting on behalf of PRF in the 02922 proceedings, it seems clear that Gadens has, or will have, intimate knowledge of matters on behalf of PRF in relation to its actions throughout the period relevant to the 02921 proceedings (the relevant information).
3.5In our submission Gadens’ possession of the relevant information:
(a) places it in a position of actual conflict in acting against PRF in the 02921 proceedings;
(b) may compromise PRF’s ability to obtain a fair trial of the 02921 proceedings, particularly as it is unrepresented in those proceedings.

3.6The proposed orders do not contemplate a means to deal with this conflict. These issues were first agitated between the Plaintiffs’ and our client’s former solicitors in March 2020 - yet over two years later this critical matter is still to be addressed.
3.7The Orders of 22 October 2021 (providing for the three matters to be heard and determined together) provide that evidence in the 02922 proceedings is evidence in the other two proceedings.
3.8Those Orders do not provide that the evidence in the 02922 proceedings is to be the only evidence in the other two proceedings.
3.9The key matters in issue in the 02921 proceedings are alleged misleading and deceptive conduct by way of misrepresentations contained in the ‘supplementary scheme booklet’ and in failing to upload relevant advices and documents to the Due Diligence Data Room.
3.10These are not matters that are in issue in the 02922 proceedings. As such, there will be no evidence led in the 02922 proceedings as to these issues. However, the current orders propose no mechanism by which this evidence is to be elicited or adduced.
3.11These difficulties are mirrored with respect to the 03619 proceedings where Keybridge and MBF make substantially identical allegations against four former directors/officers of PRF and/or AMX. The proposed orders again make no provision for evidence to be adduced in relation to the key matters at issue in that proceeding.
3.12We are concerned that the machinations involved with trying to manage PRF’s presence as both a Plaintiff and a Defendant in the same trial (albeit in different proceedings) will result in unnecessary delays and considerable increases in cost – particularly as PRF will not have the benefit of legal advice as to how best navigate these issues (if indeed, they can be navigated at all).
3.13PRF’s ability to receive a fair trial in the 02921 matter will adversely impact all of the parties accordingly.
4Witnesses
4.1Order 2 of Justice Delaney’s 10 June 2022 Orders requires the parties to confer and provide a trial plan to the court, jointly for all of the proceedings. However, the draft provided by the Plaintiffs only nominates a number of witnesses on behalf of the Plaintiffs to the 02922 proceedings. No witnesses have been nominated with respect to any of the defendants to that proceeding, or for either of the other two proceedings.
4.2We refer to our observations above in relation to the disparate issues that arise in the 02921 and 03619 proceedings and the different evidence that will need to be adduced in those proceedings.
4.3We have enquired of the Plaintiffs as to what consultation they have undertaken with the other defendants in the 02922 proceedings and what witnesses they have indicated that they plan to call and await their reply.
4.4We have made similar enquiries in relation to the 02921 proceedings and the 03619 proceedings, as well as what witnesses the Plaintiffs intend to call in those proceedings.

(h) On 5 August 2022, the plaintiffs, Mr James and the Lloyd’s Syndicate appeared at a directions hearing. Orders were made that included that, by 28 October 2022, the plaintiffs file any affidavit evidence and any expert evidence on which they intend to rely. The plaintiffs did not comply with those Orders. They did not file any evidence for trial.

(i) On 21 December 2022, Gadens filed a notice of ceasing to act.

(j) On 14 February 2023, the Lloyd’s Syndicate filed submissions in advance of the directions hearing scheduled for 17 February 2023. Those submissions again drew attention to repeated failure by the plaintiffs to prosecute their cases and to act in accordance with their obligations under the CPA:

2.On 21 December 2022, the seventh defendants received notice that Gadens, who were at that stage the solicitors for the plaintiffs, would be no longer acting for them. This development followed a pattern of conduct by the plaintiffs of repeated noncompliance with orders of the court and failure to engage in the proceedings consistently with obligations reflected in the Civil Procedure Act 2010, particularly section 7.
3.It was suggested that a new firm of solicitors would now be appointed to act for the plaintiff although, at the time of preparing these submissions, that has not occurred. There seems to be a difficulty with obtaining the files. This is ominous. This is the second change of solicitors by the plaintiff. There appears to have been similar difficulty in obtaining files on the previous occasion and, on both occasions, the proceedings were at a stage where important steps were due to be taken by the plaintiff but were not taken and have still not been taken.
…
6.The affidavit of Ms Barron, provides a range of examples of delay and obfuscation on the plaintiff’s part. This can be seen to be part of a pattern which has endured for nearly 4 years. It can also be seen that the plaintiff’s other two actions with which the AMX proceedings are joined, are virtually moribund.

(k) On 15 February 2023, the plaintiffs appointed new solicitors. The Court adjourned the 17 February 2023 directions hearing to 3 March 2023 on its own motion following receipt of a request from the new solicitors for the plaintiffs for a two-week adjournment of the directions hearing.

(l) At the directions hearing on 3 March 2023, the self-executing orders referred to in paragraph 46 above were made.

(m) On 14 April 2023, the plaintiffs filed the affidavit of Mr Rathner, the only evidence for trial filed by the plaintiffs in any of the three proceedings since 2019. The filing was at 9:56 pm that night, service of a copy was by email at 10:18 pm. No other evidence, lay or expert, as provided for in the 3 March 2023 order or in earlier orders, including those in October 2021 and on 5 August 2022, has been filed on behalf the plaintiffs in either of the two proceedings or on behalf the parties in proceeding 2921.

(n) On 26 April 2023, the Lloyd’s Syndicate issued a summons seeking the following relief:

1.Pursuant to Order 4 of the Orders of Delany J dated 3 March 2023, that the Plaintiff pay the Seventh Defendant’s costs of this proceeding including the costs of this Application.
2.That the Seventh Defendant have access to and liberty to enforce for its costs against the two tranches of security costs provided by Keybridge Capital Ltd (ACN 088 267 190) to the seventh defendant as follows:
(a)Being the sum of $75,000 pursuant to the Corporate Guarantee executed in December 2020;
(b)the sum of $250,000 by way of further and separate Corporate Guarantee as agreed between the parties on 14 October 2021.

In the alternative:
3.Pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and/or s 48(1) of the Civil Procedure Act 2010 (Vic), paragraph 3 of the Plaintiffs’ Reply to the Seventh Defendant’s Amended Defence dated 11 November 2020 is struck out.
4.The Plaintiffs may not file any further evidence without the leave of the Court.
5.There be judgement for the Seventh Defendant with costs.

(o) On 28 April 2023, Mr James issued a summons in similar terms to paragraphs 1 and 2 of the summons issued by the Lloyd’s Syndicate. Mr James’s summons sought, in the alternative, further security for costs.

(p) The applications by the Lloyd’s Syndicate and Mr James were the subject of directions on 10 May 2023. The applications were heard by Hetyey AsJ on 25 July 2023. His Honour concluded that, as the 3 March 2023 order for the filing of evidence did not specify a time by which evidence was to be filed and served on 14 April 2023, in contrast to other orders made that day that specified a 4:00 pm cut‑off, although served late at night, the affidavit of Mr Rathner was not filed and served in contravention of the relevant order.

(q) The proceeding next came on for directions on 4 August 2023. In the meantime, on 28 July 2023, an affidavit seeking further security for costs had been filed and served on behalf of Mr James. On 3 August 2023, the solicitors for the plaintiffs, Quinn Emanuel, filed a notice of ceasing to act.

Proceeding 3619

Viewed in isolation, proceeding 3619 has barely progressed, it has languished. As at the hearing on 1 September 2023, no evidence had been filed on behalf of the plaintiffs. The most recent step taken by the plaintiffs, apart from notices of solicitors ceasing to act and of new solicitors being appointed, is the plaintiffs’ affidavit of documents filed on 25 September 2020. Nothing has happened for three years.

When orders were made on 5 August 2022 in proceeding 2922 for the filing of evidence and when those orders were extended on 3 March 2023 to provide for self‑executing orders, corresponding orders were not made in proceeding 3619. The absence of corresponding orders is explained by the October 2021 Orders that provided that evidence in one proceeding be evidence in the other and by the fact that proceeding 2922 has at all times been the ‘main’ proceeding and the other proceedings have ‘tagged along’.

Security for costs

There have been various disputes in relation to the provision of security for costs by the plaintiffs in proceeding 2922.

In her 14 February 2023 affidavit, Ms Barron referred to correspondence dated 20 August 2021 and 14 October 2021. By that correspondence, the plaintiffs offered to provide a second tranche of security for costs in in favour of the Lloyd’s Syndicate ‘up to $250,000’ in the form of a corporate guarantee from Keybridge and the Lloyd’s Syndicate accepted that offer. However, more than two years on, the second tranche of security in the agreed form of a corporate guarantee has still not been provided by Keybridge.

The submissions filed on behalf of Mr James also complain about the failure of the plaintiffs in proceeding 2922 to provide additional security for costs which Mr James has sought since 2021.

Shortly prior to the 1 September 2023 hearing, the plaintiffs proposed to deal with the outstanding security for costs issues by proffering an undertaking to the Court to the effect that Keybridge will indemnify the liquidators of AMX, the first plaintiff in proceeding 2922. In an affidavit by Mr Bolton, managing director of Keybridge, dated 10 August 2023 Mr Bolton confirmed, as previously deposed to by Mr Patton, another director of Keybridge, that:

Keybridge will indemnify AMX and its liquidator in respect of any cost orders made against them in favour of the defendants herein. If the Court requires it, Keybridge instructs its counsel and solicitors to formally make such an undertaking to this Honourable Court.

During the hearing on 1 September 2023, senior counsel for the plaintiffs in proceeding 2922 informed the Court that Keybridge would be prepared to provide a direct undertaking to pay any costs of the defendants in that proceeding.

Given the amount of time that has been taken up in the past over security for costs disputes and the failure of Keybridge to provide the corporate guarantee which it agreed to provide in 2021, if the application to dismiss proceeding 2922 is refused, such refusal will be on condition that Keybridge provides an undertaking to the Court within seven days to pay any costs orders that may be made in proceeding 2922 in favour of the defendants or any of them including any orders for reserved costs.

An order should be made in similar terms in proceeding 3619 if that proceeding is not dismissed for want of prosecution. That is the case even though Keybridge is already exposed to costs orders as the plaintiff in that proceeding. To impose the requirement for the provision of an undertaking would place the plaintiffs’ ability to continue to pursue that proceeding on the same basis as proceeding 2922. Namely, conditional upon Keybridge undertaking to the Court that it will meet any costs orders made in the proceeding in favour of the defendants, including reserved costs.

The requirement for such undertakings, if given, and that is at Keybridge’s option, carries with it the possibility of contempt in the event of breach, not merely an exposure to orders for costs if Keybridge is unsuccessful.

Conflicts and abuse of process

The failure to deal with conflicts and the continued existence of them was relied on in support of the application to dismiss the proceedings for want of prosecution.

Senior counsel for the Lloyd’s Syndicate drew attention to several relevant conflicts. The first concerns the legal representation of the plaintiffs in the proceedings. This conflict was raised as long ago as 27 March 2020 in a letter from the solicitors for the Lloyd’s Syndicate to Macpherson Kelley:

Finally, we understand your firm acts for several parties in Victorian Supreme Court proceeding numbers S ECI 2019 02922 and S ECI 2019 03619, as well as S ECI 2019 02921. More particularly, we note that:
1. Your firm acts for Keybridge Capital Limited in proceeding number S ECI 2019 2921 against PR Finance Group (in liquidation);
2.Your firm also acts for PR Finance Group (In liquidation) and Australian Money Exchange Pty Ltd (in liquidation) In proceeding number S ECI 2019 02922 against several former directors of those companies;
3.Your firm acts for Keybridge Capital Limited and MB Finance Pty Ltd in proceeding number S ECI 03619 against several former directors of PR Finance Group Limited (in liquidation).

Your clients’ representation of Keybridge Capital Limited and MB Finance Pty Ltd, as well as the PR Finance Group (in liquidation) and Australian Money Exchange (in liquidation) gives rise to an apparent conflict. Would you please provide further details regarding the capacity in which your firm is acting in each of the proceedings and why there Is no conflict, particularly given it appears that you are acting for both the plaintiffs and the defendant in proceeding number S ECI 2019 02921.

Despite ongoing attention being directed to these issues and the need to resolve the conflicts, complaints were ignored by the plaintiffs and their legal advisers from time to time. Those conflicts remained unresolved until the Court dismissed proceeding 2921 of its own motion.

The second conflict exists between the matters pleaded against the Lloyd’s Syndicate in proceeding 2922 and matters pleaded in the other proceedings. The Lloyd’s Syndicate submitted that the plaintiffs’ reply in proceeding 2922 to the Lloyd’s Syndicate’s non-disclosure defence alleges that there was disclosure by way of statements included in the scheme booklet. However, in the pleadings in proceedings 3619 and 2921, the same passage is pleaded to be an assurance or a warranty that there were no regulatory or related issues to be concerned about. Counsel submitted that:

[I]n reality the very people who put this optimistic proposition in another place put the proposition that not only should it not have put us on inquiry, it should have made us all relaxed.

The plaintiffs rejected the proposition that there is a conflict. They submitted that it is permissible to rely on inconsistent pleadings. While it is permissible to rely on inconsistent pleadings in the one proceeding, what occurred in this case is the same party advancing propositions in separate proceedings that are diametrically opposed and which are not advanced as alternatives.

The third conflict concerns the advice provided by HWL Ebsworth. The Lloyd’s Syndicate submitted that in proceedings 2922 and 3619 it is pleaded that the directors failed to disclose the advice from HWL Ebsworth, that the non-disclosure was a breach of warranty and that, absent such a breach, Keybridge would not have proceeded with the transaction. It was submitted that this pleading is inconsistent with evidence given by a director of Keybridge, Mr Bolton, in a recent affidavit dated 10 August 2023 in which he deposes that:

I also note that at the time I first read the draft HWL Ebsworth advice of 21 May 2013, I understood that draft advice as concluding that the AMX contracts were essentially compliant with and exempt from the requirements of the Credit Code, consistent with the summary given by James when he provided that advice, that it supported the position that AMX was complying with the law. As it was otherwise merely a draft advice and appeared to support the legality of the AMX business I did not then give it any greater focus. In my discussions with the other directors of Keybridge at the time, they expressed similar conclusions as to it. …

Finally, as I have noted at paragraph 25 above, there are also inherent conflicts within the third further amended statement of claim filed in proceeding 2922 concerning the positions alleged to have been held by the defendants (other than the Lloyd’s Syndicate) and their resignations from those positions.

Prejudice

As the Court of Appeal noted in Sullivan, the presence of ‘serious prejudice’ to the defendant due to inordinate or inexcusable delay is generally necessary to dismiss a proceeding for want of prosecution. However, as the Court in Sullivan went on to say, following the introduction of the CPA, ‘[e]ven in cases where inordinate, inexcusable and prejudicial delay are not established, failure to comply with the orders of the Court may therefore none the less warrant summary dismissal’.

In this case, the evidence of prejudice relied on is found in Mr James’s 7 August 2023 affidavit. The relevant paragraphs are quite brief and can conveniently be reproduced:

31.The plaintiffs’ delay has resulted in prejudice to me leading to an inability to ensure a fair trial. The matters the subject of the trial occurred a very long time ago and the ability for witnesses to recall those events will continue to diminish.
32.The proceedings have now been on foot for over four years. In that time, I have incurred substantial legal fees, which are now in excess of $300,000. Much of this is due to the plaintiffs’ conduct in failing to engage, pay and retain solicitors, comply with orders, prepare and file its evidence and respond to correspondence. Furthermore, this is in the context of a proceeding involving a statute of limitations defence.
33.The ongoing conduct of the proceedings has caused me both psychological and emotional stress and has been a huge distraction to my ability to operate my business.

Merits submissions

Various submissions were advanced about the merits of the claims made against Mr James and against the Lloyd’s Syndicate. It is not feasible on an application such as the present to undertake a detailed examination of the merits and I do not propose to do so.

Consideration

All three proceedings were issued only a short time before the expiry of six-year limitation periods and, in one instance according to the defendants, after the expiry of relevant limitation periods. A further four years have passed since the proceedings were instituted. In that time, in proceeding 2922, the plaintiffs have filed one affidavit only, the affidavit of Mr Rathner dated 14 April 2023, upon which they wish to rely as their primary evidence at trial. They have persisted with a pleading that, as earlier noted, contains internal inconsistencies.

While the plaintiffs may wish to file evidence directed to the topics discussed with counsel during the hearing as noted at paragraphs 49 to 51 above, including expert evidence, the evidence and submissions in opposition to the applications does not include a timetable for the filing of further evidence by the plaintiffs in either of the cases should the dismissal applications be refused.

No evidence has been filed in opposition to the applications that identifies any further witnesses that the plaintiffs in either proceeding wish to call, whether as primary evidence or in reply. With the exception of possible evidence from Mr Bolton, to whom reference was made during the hearing, no proposed witnesses have been identified by name. There is no evidence setting out the stage of preparation of any such evidence, the steps, if any, that have been taken to procure or to prepare any such evidence, and when such evidence will be ready to be filed and served. Senior and junior counsel who appeared on behalf of the plaintiffs in those applications have had no earlier involvement in the proceedings. It is not clear whether they are now retained to conduct the proceedings in place of earlier counsel.

Looking at the state of both proceedings more broadly, the steps that have and have not been taken, the history of failure by the plaintiffs to comply with previous Court orders, the history of extensions of time, the current state of preparedness of the two proceedings for trial, and the ongoing failure of the plaintiffs to address conflict of interest issues drawn to their attention more than two years ago, it is clear that the plaintiffs have not complied with their statutory overarching obligation in s 25 of the CPA to act promptly and to minimise delay.

Although orders were previously made which remain extant for the three proceedings to be heard and determined together and for evidence in each proceeding be evidence in the other, when determining the applications to dismiss the proceedings for want of prosecution it is necessary to consider each proceeding separately.

In proceeding 2922, there has been inordinate delay on the part of the plaintiffs. The delay is not confined to the 90 – 112 days when the plaintiffs were ‘between solicitors’. As appears from the history of proceeding 2922, there have been many adjournments of directions hearings. Some of those delays have been occasioned by extensions of time requested by the Lloyd’s Syndicate. However, those extensions of time, when sought, have been agreed to by the plaintiffs. There has been very little activity at all on the part of the plaintiffs whose case it is to bring over the course of the four years since proceeding 2922 was issued. The plaintiffs have failed dismally in discharging their obligation discussed in Spitfire Nominees to move with speed in their prosecution of a claim issued very late in the limitation period. The plaintiffs have failed to engage and deal with the conflict of interest issues raised initially in 2020 and repeatedly drawn to their attention.

The plaintiffs filed the third affidavit of Mr Rathner on the night of 14 April 2023. They did not file any other evidence for trial as they were required to do by the self-executing order made 3 March 2023, should they wish to do so. Whether Mr Rathner’s affidavit is correctly regarded as lay or expert evidence is of no moment. It is the only primary evidence that the plaintiffs in proceeding 2922 have filed and are permitted to file and rely upon at trial. If the proceeding is not dismissed for want of prosecution, that is the sum total of the plaintiffs’ primary evidence for trial, apart from documents which they may tender as part of their case.

In proceeding 3619, there has not previously been a specific order for the filing of evidence. The October 2021 Orders permit the evidence in proceeding 2922 to be relied on in this proceeding. The plaintiffs have done nothing independent of proceeding 2922 to advance proceeding 3619 since filing an affidavit of documents three years ago.

Based on the discussion with recently retained senior counsel in the course of the hearing, despite the orders made on 22 October 2021, 5 August 2022 and the self-executing orders made on 3 March 2023 requiring all of the plaintiffs’ primary evidence to be filed and served no later than 14 April 2023, it appears the plaintiffs have not yet filed all of the primary evidence upon which they may wish to rely at the trial of proceeding 3619.

Prior to a directions hearing on 5 August 2022, the plaintiffs foreshadowed filing a fourth further amended statement of claim in proceeding 3619. An order to that effect was made. The plaintiffs subsequently advised the parties on 14 April 2023 that they did not intend to file a fourth further amended statement of claim in proceeding 3619. However, a fourth further amended statement of claim, if one were to be filed, could only have been filed in proceeding 2922. Either way, it seems the plaintiffs are content with their pleadings as they currently stand.

When determining these applications, I am required by s 7(1) of the CPA to seek to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute. In aid of that objective, ss 47-49 of the CPA relevantly provide:

47Judicial powers of case management—overarching purpose and active case management
(1)Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made—
(a)in the interests of the administration of justice; or
(b)in the public interest.

(2)A direction given or an order made under subsection (1) may include, but is not limited to, imposing any reasonable limits, restrictions or conditions in respect of—
(a)the management and conduct of any aspect of a civil proceeding; or
(b)the conduct of any party.

(3)Without limiting subsection (1) or (2), a court may actively case manage civil proceedings by—
(a)giving directions to ensure that the civil proceeding is conducted promptly and efficiently;
…
(e)controlling the progress of the civil proceeding, including, but not limited to—
(i)fixing timetables;
(ii)dealing with as many aspects of a civil proceeding as it can on the same occasion;
…

(f)limiting the time for the hearing or any other part of a civil proceeding, including, but not limited to—
(i)limiting the number of witnesses at the hearing;
…

48Court’s power to order and direct pre-trial procedures
(1)In addition to any other power a court may have, a court may make any order or give any direction it considers appropriate to further the overarching purpose in relation to pre-trial procedures.
(2)Without limiting subsection (1), a court may give any directions or make any orders it considers appropriate with respect to—
(a)the conduct of proceedings;
…

49Court’s power to order and direct trial procedures and conduct of hearing
(1)In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
(2)A direction or an order under subsection (1) may be given or made by the court at any time—
(a)before a hearing commences; or
(b)during a hearing.

(3)Without limiting subsection (1), a court may give any direction or make any order it considers appropriate with respect to—
…
(d)witnesses, including—
…
(iii)limiting the number of witnesses that a party may call …

I am conscious of the impact on the plaintiffs if I were to dismiss either of the proceedings. I am aware of the caution expressed in the cases, including in Sullivan. I am however extremely concerned by the apparent disregard by the plaintiffs of their obligations under the CPA, in particular their obligation in s 25, and by the impact of the plaintiffs’ delays on the defendants and their ability, given the passage of time, to obtain a fair trial. The plaintiffs were reminded of their CPA obligations by the Lloyd’s Syndicate on at least 2 August 2022 and 14 February 2023. Even on the hearing of these applications, the plaintiffs have shown no real intent to prosecute the two cases, or either of them, filing no evidence to show what further steps they consider necessary to get the cases ready for trial and when those steps will be taken. Instead, the plaintiffs have simply reacted to the applications for dismissal.

I am satisfied that there has been inordinate delay on the part of the plaintiffs in the prosecution of both proceedings. The past conduct of the two proceedings, and indeed the past conduct of the third proceeding that now stands dismissed, gives no confidence that the plaintiffs will, unless put under a very tight reign, prosecute either proceeding hereafter with alacrity.

Nonetheless, the key question is where do the interests of justice lie, and might, at least the defendants, but also the plaintiffs, be afforded a fair trial if the proceedings are not dismissed. I consider that a fair trial is possible if there are strict orders put in place governing the further conduct of the proceedings and of any trial.

I propose to order that, if the applications for dismissal are refused, the only primary evidence that the plaintiffs may rely on at trial in either proceeding is that of Mr Rathner in his 14 April 2023 affidavit. Mr Rathner’s affidavit responds to the expert report of Mr Park, an expert to be called by the Lloyd’s Syndicate, whose expert report was filed nearly a year earlier. That being the case, I do not consider that prejudice would flow to the defendants in either proceeding were the evidence of Mr Rathner permitted to be relied on at trial.

The evidence of Mr James is evidence of prejudice due to the effluxion of time. The events of which oral evidence may be required at trial by and on behalf of the defendants occurred between ten and thirteen years ago. That evidence includes matters such as the discussion of the Advices to which reference is made in the defences. I accept that prejudice to Mr James and to the individual defendants of having to respond to oral factual evidence of others who are not identified and who the plaintiffs might wish to call directed to those matters, if not restricted from so doing, would amount to ‘serious prejudice’.

Serious prejudice would flow to the defendants from a need for Mr James and others to give responsive evidence to the oral evidence of others about events that occurred so long ago. However I do not consider that ‘serious prejudice’ is likely to be occasioned to Mr James or to the other defendants from being called upon as part of the case they need to meet to respond to contemporaneous documents, albeit those documents came into existence between ten and thirteen years ago. The documents are likely to speak for themselves. If Mr James and others on behalf of the defendants determine to give evidence concerning such documents or otherwise in support of the allegations in their defence, that will be their choice.

The time for the service of evidence on behalf the plaintiffs, apart from documents to be tendered, expired on 14 April 2023. If it did not strictly expire at that time, as a condition of not dismissing the proceedings, I propose to order in each case that if the matter goes to trial it will do so based on the primary evidence filed to date by the plaintiffs – the evidence of Mr Rathner only, subject to proper objections to the admissibility of such evidence together with documents to be tendered by the plaintiffs.

It will be a matter for the Lloyd’s Syndicate if the matter goes to trial whether they wish to call any witnesses in support of the fraudulent non-disclosure defence in proceeding 2922, or whether they wish to simply tender documents in support of that allegation. If the Lloyd’s Syndicate file oral evidence, then the interests of justice require that the plaintiffs have the ability to file evidence in response to that oral evidence but not otherwise. In light of the time that has passed and the lack of any activity of substance on the part of the plaintiffs, it is important to confine reply evidence to evidence that is truly evidence in reply, as contemplated by previous case management orders, rather than evidence dealing with documents which have been available to the plaintiffs for some considerable time.

Orders which restrict the future conduct of these very old proceedings are appropriately made on the disposition of these applications in the exercise of the case management powers in Part 4.2 of the CPA. In particular, in the exercise of the powers conferred on the Court by ss 47(1)(a), (3)(a) and (e) where the interests of the administration of justice so demand, and in the exercise the power in ss 49(1) and (3)(d)(iii) of the CPA to further the overarching purpose in relation to the conduct of the hearing of these proceedings. I consider that by limiting the primary evidence available to be relied on by the plaintiffs to evidence filed in accordance with previous orders, noting that Mr Rathner’s evidence is mainly responsive to expert evidence filed on behalf of the Lloyd’s Syndicate, and by making provision for limited responsive evidence in reply, should the occasion for such evidence arise, the interests of justice are promoted and the interests of both parties in obtaining a fair trial are appropriately safeguarded. I hold that opinion noting that, as discussed in Sullivan, it is open to dismiss a proceeding for want of prosecution even where prejudicial delay is not established.

It is also appropriate to make orders as a condition of dismissal of the applications that confine the cases which the plaintiffs may wish to advance at trial to the cases set out in their existing pleadings. That is the case notwithstanding the inconsistencies in the pleadings to which I have referred, but which the plaintiffs have, over several years, failed to address and notwithstanding the pleadings refer to proposed particulars to be provided for trial. Unless the defendants require them, there are to be no further particulars. The opportunity for the plaintiffs to properly particularise their claims has long since passed.

I will order that, as a condition of each case going forward and of the applications for dismissal being refused:

(a) Keybridge provide an undertaking to the Court to pay the defendants’ costs, including reserved costs, if ordered to do so in proceeding 2922 and in proceeding 3619.

(b) Keybridge must provide a separate undertaking to do so in each proceeding on or before 4:00 pm on 20 October 2023.

(c) The undertaking in proceeding 2922 may be confirmed in correspondence from the solicitors for Keybridge to the Court noting that such correspondence, if provided, will serve as confirmation of the undertaking which counsel indicated would be given on 1 September 2023.

(d) Keybridge must provide an undertaking in proceeding 3619 to pay the costs of the defendants in that proceeding including reserved costs, via its solicitors in a written communication to the Court on or before 4:00 pm on 20 October 2023.

For the avoidance of doubt, the undertakings referred to in the previous paragraph are to be given separately in each of proceedings 2922 and 3619. If the required undertakings are not given by the time provided for in respect of either such proceeding then that individual proceeding shall stand dismissed pursuant to the application for dismissal for want of prosecution.

As a separate and independent condition of the applications for dismissal being refused, I will order that the primary evidence to be adduced by the plaintiffs in the proceedings or either of them at trial shall comprise only:

(a) the affidavit of Mr Rathner dated 14 April 2023 (subject to such objections as may be made and allowed in relation to admissibility of such evidence whether in whole or in part); and

(b) such documents as the plaintiffs propose to tender, such documents to be identified in separate lists of documents for tender to be filed and served in each of proceeding 2922 and 3619 by 4:00 pm on 20 October 2023.

In the event the plaintiffs fail to file and serve such a list in either or both proceedings by 4:00 pm on 20 October 2023, that proceeding or those proceedings shall stand dismissed pursuant to the application or applications for dismissal for want of prosecution.

As a further separate and independent condition of the applications being refused, I will order that, on or before 4:00 pm on 20 October 2023, the plaintiffs in proceedings 2922 and 3619 are to file and serve a separate memoranda in each proceeding which identifies clearly those claims on the pleadings which are to be pursued at trial and those which are not to be pursued. Each memoranda is to be accompanied by a draft form of order setting out the relief for which the plaintiffs contend in that proceeding. If the plaintiffs fail to comply with this order in respect of one or other or both of the proceedings, then that proceeding, or both of them as the case may be, shall stand dismissed.

I will not make any orders in relation to evidence or further steps to be taken by the defendants in either proceeding. First, it must be seen whether the plaintiffs will pursue these proceedings or either of them with the plaintiffs’ trial evidence to be limited in the manner provided for above and with the proceedings to be conducted on the financial footing I require as a condition of the proceedings going forward.

I will adjourn both proceedings and the further hearing of the applications to dismiss them for want of prosecution until 27 October 2023. At that time if the plaintiffs have provided the required undertakings in both matters and have complied with the orders referred to above, I will make orders providing for the filing of evidence and lists of documents to be tendered at trial by the defendants. I will also fix a time for the filing of any reply evidence in relation to the issue of fraudulent non-disclosure, should evidence of any witness be filed in support of that allegation by the Lloyd’s Syndicate. If the matters, or one of them, is proceeding, the parties are directed to confer on or after 4:00 pm on 23 October 2023, and to file an agreed trial plan by no later than 4:00 pm on 25 October 2023.

I appreciate that a number of the defendants are self‑represented. I encourage those persons to communicate with the legal practitioners for the represented parties, Mr James and the Lloyd’s Syndicate in advance of the next directions date.

Costs

In accordance with these reasons, the disposition of the applications to dismiss for want of prosecution is a matter in the hands of the plaintiffs and of Keybridge who is a plaintiff in proceeding 3619 and who stands behind the plaintiffs in proceeding 2922. If Keybridge provides the undertakings, and complies and causes compliance with the orders to which I have referred, then both cases, or if there is only compliance in one of the two cases, that case, can go forward to trial. If there is non‑compliance, then the proceeding or proceedings will be dismissed and costs will follow the event.

Provided Keybridge gives the required undertakings and otherwise adheres to the orders outlined above, it might be said that the plaintiffs have been successful in resisting the dismissal applications against them. However, I will not order costs in their favour. The applications were made bona fide by Mr James and the Lloyd’s Syndicate. The only reason these applications have been required is because of the plaintiffs’ failure to comply with their obligations pursuant to the CPA.

Particularly where the plaintiffs have been reminded of the need to comply with those obligations and have failed to do so, it is not appropriate that the plaintiffs recover their costs. The parties responsible for wasted costs are the plaintiffs in the two proceedings and Keybridge, who is a plaintiff in one of the proceedings and who stands behind the other plaintiffs. These applications should never have been necessary.

I will order that the costs of Mr James and of the Lloyd’s Syndicate of and incidental to these applications be paid by Keybridge forthwith.

Orders

The solicitors who have the conduct of these proceedings on behalf of Mr James and on behalf of the Lloyd’s Syndicate are directed to prepare draft forms of order that give effect to these reasons, and to provide the draft forms of order to my Chambers by 4:00 pm on Monday, 16 October 2023.

---

SCHEDULE OF PARTIES

S ECI 2019 02922
AUSTRALIAN MONEY EXCHANGE PTY LTD (IN LIQUIDATION) (ACN 090 388 257)	First Plaintiff
and
PR FINANCE GROUP LTD (IN LIQUIDATION) (ACN 109 299 390)	Second Plaintiff
and
JONATHON HUW ELFYD LLEWELLYN	First Defendant
and
CAMERON ROSS JAMES	Second Defendant
and
PETER ELFYD LLEWELLYN	Third Defendant
and
RODERICK WICKHAM JAMES	Fourth Defendant
and
KENT BRUCE JAMES	Fifth Defendant
and
RONALD FRANCIS TONG	Sixth Defendant
and
THE UNDERWRITING MEMBERS OF LLOYD’S SYNDICATE 2468 FOR THE 2012 YEAR OF ACCOUNT SUBSCRIBING TO THE POLICY LAUDO-0000000477	Seventh Defendant

S ECI 2019 03619
KEYBRIDGE CAPITAL LIMITED (ACN 088 267 190)	First Plaintiff
and
MB FINANCE PTY LTD (ACN 123 051 730)	Second Plaintiff
and
PETER ELFYD LLEWELLYN	First Defendant
and
RODERICK WICKHAM JAMES	Second Defendant
and
RONALD FRANCIS TONG	Third Defendant
and
KENT BRUCE JAMES	Fourth Defendant

[2023] VSC 601

11 October 2023