Editions Tom Thompson Pty Ltd v Pilley

The matter before the Court was an application for leave to amend an application that was originally made by Editions Tom Thompson Pty Ltd (ETT) but which, if leave was granted, would be made by the administrators of ETT. The amendment sought to add the administrators as second applicants to an application for directions under s 447D of the Corporations Law. The relief sought in the proposed amended application would remain in substance unaltered. The administrators sought a direction that they were "entitled to sell" certain assets which were claimed by Bruce Pilley. Mr Pilley opposed the motion for leave to amend on two grounds: first, that the application for directions was an abuse of process, and second, that it was an inappropriate procedure for the resolution of the dispute as to ownership of the assets. The Court dismissed the motion for leave to amend. In so doing, it held that it was not possible for the Court to resolve the dispute as to ownership within the framework of an application for directions. It would be wasteful of the Court's and the parties' resources to give a direction, even in a modified form, in these circumstances. There was a real possibility of a second, but inter partes, proceeding relating to the same issue. The Court declined to give a direction that the administrators were "justified" in selling the assets. It also held that if it were possible to give directions which would be binding upon Mr Pilley, or if ETT were to apply to have the proceeding reconstituted as an inter partes proceeding for the determination of substantive rights, it was not satisfied, on the material presently before it, that Mr Pilley would not suffer injustice if the issue of title were to be finally determined on the affidavits filed on the application for directions and without pleadings and discovery.