Daleroad Pty Ltd v North Queensland Laundries Pty Ltd

[1991] FCA 61

'JUDGMENT No. 61 ..... l%.

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1          No. VG 380 of 1989

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BETWEEN	c

Applicants

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Respondents

A U ~ E : Heerey J.
B&?s: Melbourne

21, 22 February 1991

In my opinion, there is no basis whatsoever for a finding that the applicants' solicitors, in seeking extensions of time for providing further particulars and an amended statement of claim, deliberately misled the respondents' solicitors and that the true reaeon for delay was to collude with the liquidator of the first respondent, and in particular to set up an examination under 8.541 of the Companies (Queensland) Code.

not at all inconsistent with the reasons given to the	had engaged in such discussions and I find this fact in itself
respondents' solicitors for extensions of time being truthful and genuine.
However, I am not prepared to accede to Mr Derham's request that the foreshadowed amended statement of claim be delayed until the conclusion of the 6.541 examination, which may involve further delay of up to two months. I do not think I need examine the controversial contention of the applicants that such delay would be justified because delivery before the examination of an amended statement of claim would "tip off" the person to be examined and thereby frustrate the effectiveness of the examination process.
The fact remains that there has already been grossly excessive delay in this matter. Even if the amended statement of claim is delivered now that will be, as Mr Shavin points out, almost a year after the expiration of the relevant limitation period. In most cases under 6.52 of the Trade Practices Act involving purchases of a business, the purchaser is in a reasonably good position to frame a case at an early stage, because he is aware of the representations made and, having entered into possession of the businese, has become aware of the respects in which those representations are false. And of course it is not an essential part of the case to demonstrate the vendor's knowledge of that falsity. It does not seem that the present case is subetantially different from this general pattern and the delay is therefore all the more a matter for criticism.
In any case, it was said by Mr Derham in the course of argument that the solicitor who swore the affidavit in opposition to this application did not know the nature of the information which would "be reflected in a further amended
statement of claim" (to use the words of the affidavit) - this being the information which it is feared "might tip" off the persons being examined.
As a matter of construction of the affidavit, I find it difficult to accept this is the meaning conveyed. However, even if that be so, there is yet another reason for the Court to decline to further delay delivery of the amended statement of claim. It is being asked to do so because that further amended statement of claim will contain information, the nature of which is not disclosed to the Court, or even to the applicants8 legal advisers.
Therefore I direct that a further amended statement of claim be filed and served on or before 8 March. I won't at the moment make the default order that Mr Shavin sought, but these reasons will be on the record and will evidence the view which the Court takes of the lack of progress to date, and will be available if there is any further delay.
I will make the directions I have indicated; that is a further
amended statement of claim by 8 March; adjourn directions to 15 March and order the applicant pay the respondents' costs of the motion dated 15 February 1981 which will include the costs of yesterday's hearing.

I cannot Bee anything wrong in a creditor, or person claiming

to be a creditor, discussing the affairs of a company with a liquidator of the company or, subject to any particular ground of confidentiality which the law recognises, in the liquidator providing information about the company to such a claimant.

It is hardly surprising that the applicants and the liquidator

I certify that this and the preceding two (2) pages are

a true copy of the Reasons for Judgment of the

Honourable Mr Justice

Heerey

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Counlrel for the applicants:	W M Derham
Ma P Pengilley
Solicitore for the applicants:	Freehill, Hollingdale h page
Counsel for the respondents:	W D Shavin
Solicitors for the reepondent:	Blake Dawson Waldron