Florgale Uniforms Pty Ltd v Orders (No 1)
[2000] VSC 427
•20 October 2000
| SUPREME COURT OF VICTORIA | |
| COMMERCIAL AND EQUITY DIVISION | Not Restricted |
| COMMERCIAL LIST |
No. 2000 of 2000
| FLORGALE UNIFORMS PTY LTD (ACN 004 233 167) (Receiver and Manager Appointed) (In Liquidation) and OTHERS | Plaintiffs |
| v | |
| MALCOLM JOHN ORDERS | First Defendant |
| and | |
| NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) | Second Defendant |
| and NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) | Plaintiff by Counterclaim |
| and GROUP TEXTILE ENTERPRISES PTY LTD (ACN 005 970 178) & ORS | Defendants to Counterclaim |
---
JUDGE: | Warren J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2000 | |
DATE OF JUDGMENT: | 20 October 2000 | |
CASE MAY BE CITED AS: | Florgale Uniforms Pty Ltd & Ors v Orders & Ors (No. 1) | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 427 | |
---
Corporations Law, s.477(6) – leave to pursue proceedings on behalf of companies in liquidation – whether a serious question to be tried – Receiver - duties owed by a receiver – whether duties arise as a result of the receivership upon lender – Agency – whether a receiver is the agent of the appointor.
---
APPEARANCES: | Counsel | Solicitors |
For the 4th to 10th Plaintiffs | Mr P. Collinson | O'Donnell Frampton Salzano |
| For the Defendants | Mr I.R. Jones | Russell Kennedy |
| For the Liquidator of the 1st to 3rd Plaintiffs | Mr R.S. Randall | Lewis Hutchinson |
HER HONOUR:
The fourth to tenth plaintiffs seek leave pursuant to s.477(6), alternatively s.471A(1) of the Corporations Law retrospectively for leave to pursue these proceedings on behalf of three companies that are in liquidation.
The proceeding was commenced on 7 January 2000 in the name of ten plaintiffs by O'Donnell Frampton Salzano, Solicitors. The first three plaintiffs were the first plaintiff, Florgale Uniforms Pty Ltd ("Florgale Uniforms"), the second plaintiff Florgale Uniforms (NSW) Pty Ltd ("Florgale Uniforms NSW") and the third plaintiff Professional Uniforms Pty Ltd ("Professional Uniforms") were placed in liquidation on 25 November 1998. The fourth plaintiff Group Textile Enterprises Pty Ltd ("Group Textile"), the fifth plaintiff Thurston Nominees Pty Ltd ("Thurston Nominees") and the remaining plaintiffs, John William Burnes, Collette Frances Burnes, David Robert Burnes, Constance Mary Ryan and Elizabeth Emma Burnes were the providers of various securities and guarantees in favour of the three plaintiff companies now in liquidation. The proceedings were brought against the first defendant Malcolm John Orders as the receiver appointed to the plaintiff companies and the second defendant, National Australia Bank Limited who appointed the receiver.
Florgale Uniforms, Florgale Uniforms (NSW) and Professional Uniforms previously formed the "Florgale Group". The group was engaged in the business of manufacturing and selling uniforms, business wear, sporting apparel and health care apparel and linen. In about January 1989 the Bank of New Zealand ("BNZ") granted financial facilities and accommodation to Florgale Uniforms. The facilities provided by BNZ were secured by debenture charges registered over each of the assets and undertakings of Florgale Uniforms, Florgale Uniforms (NSW), Professional Uniforms, Group Textile and Thurston Nominees in favour of BNZ on 30 January 1989 together with guarantees. Personal guarantees were provided on 30 January 1989 by each of John Burnes, Collette Burnes, David Burnes and Constance Mary Ryan on 30 January 1989 and by Elizabeth Emma Burnes on 17 August 1992 in favour of BNZ. Subsequently, there were additional securities provided by Group Textile by way of a deed of undertaking granted on 7 August 1992 and a deed of subordination granted by Florgale Uniforms, Group Textile, Florgale Uniforms (NSW), Thurston Nominees and Professional Uniforms on 4 September 1992 all in favour of BNZ.
In about July 1997 National Australia Bank Ltd ("NAB") succeeded BNZ as lender under the BNZ facilities and succeeded BNZ as holder of the various securities already referred to. On 29 October 1998 an administrator was appointed to Florgale Uniforms and Professional Uniforms. On 5 November 1998 NAB appointed Malcolm John Orders ("Orders") as receiver and manager of the property charged by each of Florgale Uniforms, Florgale Uniforms (NSW) and Professional Uniforms. On 25 November 1998 the companies went into liquidation.
In the statement of claim the plaintiffs alleged that the first defendant Orders breached duties owed by him as receiver to each of the plaintiffs when exercising powers of sale in relation to the property charged by Florgale Uniforms, Florgale Uniforms (NSW) and Professional Uniforms. The plaintiffs alleged that in exercising the relevant power of sale Orders failed to take reasonable care to sell the property at not less than its market value and at the best price reasonably obtainable and disregarded the interests of the plaintiffs in realising the assets of each of Florgale Uniforms, Florgale Uniforms (NSW) and Professional Uniforms. It was alleged on behalf of the plaintiffs in the statement of claim that the loss and damage suffered included loss of opportunity to sell the Florgale Group businesses for a price in the range of $780,000-$1,180,000, and losses arising from a "fire sale" of stock totalling over $800,000. The plaintiffs alleged, also, that NAB owed a duty to each of the plaintiffs to take account of their interests in the realisation of assets charged by Florgale Uniforms, Florgale Uniforms (NSW) and Professional Uniforms. The plaintiffs alleged that NAB breached the duties owed and aided, abetted, counselled or procured the receiver to contravene s.420A of the Corporations Law and participated in a breach of s.232(4) of the Law. There was an additional claim, also, made against the receiver of conversion of goods and a cheque. As a consequence, the plaintiffs in the statement of claim sought declaratory relief and orders for damages.
It transpired that the proceedings were in fact instituted by the fourth to tenth defendants purporting to act on their own behalf and on behalf of the companies in liquidation. At the time the writ was filed on 7 January 2000 leave of the court had not been sought to do so by any of the plaintiffs. Further, no notice was provided or consent sought from the liquidator of the Florgale companies.
The proceedings were issued in the Commercial List and came before this court on the first directions hearing on 4 February 2000. Orders were made by consent constituting a timetable providing for the delivery of pleadings and the filing of discovery. The directions hearing was adjourned to 7 April 2000. On that occasion an application was made by NAB for the removal of the matter from the Commercial List. The application was refused and an extension of time granted to the plaintiffs to comply with pre-trial directions. The directions hearing was adjourned to 2 June 2000. Subsequently, further and better particulars of statement of claim were provided by the plaintiffs and a defence filed on behalf of the defendants. Extensive discovery was provided in particular by the defendants. Further adjournments of the directions hearing were granted on 2 and 23 June 2000. On 23 June 2000 NAB filed a counterclaim. The directions hearing was further adjourned on 21 July 2000 and the proceeding was referred to mediation to be completed by 31 August 2000. The next directions hearing was to have been 1 September 2000. At no stage up until this point had any observation been made or issue raised of the fact by any party that the first three plaintiff companies were in liquidation.
On 22 August 2000 an application by summons was issued by David Henry Scott ("Scott") in his capacity as liquidator of Florgale Uniforms, Florgale Uniforms (NSW) and Professional Uniforms. The summons sought that the claims brought by the first to third plaintiffs in the proceeding be stayed or struck out and that the fourth to tenth plaintiffs pay the costs. In an affidavit sworn 22 August 2000 Scott deposed that he was the liquidator of each of the Florgale companies having been appointed on 25 November 1998. He deposed that the proceedings were brought in the name of the first to third plaintiffs without his knowledge authority or consent as liquidator and that he had not retained the solicitors, O'Donnell Frampton Salzano or any other person to issue the proceedings on behalf of the first to third plaintiffs. Scott deposed that the first time he learnt of the proceeding was in about April 2000 when he was contacted by O'Donnell Frampton Salzano. Scott deposed in his affidavit, also, that consideration had been given to the possibility of requiring the plaintiffs other than the liquidated companies to provide an appropriate indemnity to Scott to enable the proceeding to continue. It transpired that the matter could not be resolved satisfactorily on this basis.
By summons filed 31 August 2000 on behalf of the fourth to tenth defendants an application was made for orders that those plaintiffs have leave to pursue the proceeding on behalf of the liquidated companies, alternatively, that the fourth to tenth plaintiffs be appointed pursuant to s.477(6) or, alternatively, s.471A(1) of the Corporations Law to pursue the proceeding on behalf of the first to third plaintiffs. The two summonses brought by the liquidator and the other plaintiffs came on for hearing on 13 September 2000.
At the hearing of the applications the liquidator adopted the position that if the court granted leave to the fourth to tenth plaintiffs the liquidator would not oppose the granting of leave subject to an appropriate indemnity and payment of the liquidator's costs. The defendants took up the cudgel of opposition to the application for leave by the fourth to tenth plaintiffs.
The primary issue for me to determine was whether or not it was appropriate to allow the fourth to tenth plaintiffs to continue the proceeding and conduct it on behalf of the first to third plaintiffs. If not, it followed that the proceeding ought be stayed. On the other hand, if I was so persuaded that it was appropriate to allow the fourth to tenth plaintiffs to conduct the proceeding on behalf of the Florgale companies the question arose as to whether an indemnity should be provided to the liquidator in all the circumstances.
The discretion under s.477(6) of the Corporations Law is exercised according to the following principles:
(a)The applicant must establish that the pursuit of the action in the name of the company is not vexatious or oppressive i.e. that it has some arguable foundation (Aliprandi v Griffith Vintners Pty Ltd;[1] Cadima Express Pty Ltd v DCT;[2] Russell v Westpac BC.[3])
(b)It is appropriate for the court to look beyond the causes of action asserted in the pleadings to determine whether the company in liquidation has at least an arguable case (eg Cadima Express Pty Ltd v DCT.[4])
(c)The test which is applied is akin to that used in considering whether interlocutory relief should be granted i.e. "a serious question to be tried" (Eros Cinema Pty Ltd v Nassar;[5] Vagrand Pty Ltd v Fielding;[6] Magarditch v ANZ.[7])
(d)It follows that it is not necessary for an applicant to produce to the court evidence sufficient to establish affirmatively that the proposed proceedings will necessarily be successful and the court is entitled to infer, if appropriate, from the evidence which is before it that additional relevant evidence is likely to be or may be available from other sources for the hearing (Eros Cinema Pty Ltd v Nassar.[8])
(e)The attitude of the liquidator to the proceeding is a relevant matter (Cadima Express v DCT.[9])
[1] (1991) 6 ACSR 250, 252
[2] (1999) 33 ACSR 527, 536
[3] (1994) 13 ACSR 5, 9
[4] supra at 536
[5] (1996) 14 ACLC 1374, 1380
[6] (1993) 41 FCR 550, 553
[7] (1999) 32 ACSR 367, 384
[8] supra at 1380
[9] supra
John William Burnes on behalf of the fourth to tenth plaintiffs deposed on affidavit sworn on 6 September 2000 the following:
(a)The Receiver specifically instructed the directors of the Florgale group not to pursue prospective sale negotiations because he was "in complete control of the company";
(b)At a meeting held on 12 November 1998 the Receiver informed the directors of the Florgale group that he would give them until the close of business on the next day namely 5.00 p.m. on Friday 13 November 1998 in which to find a firm offer to purchase;
(c)The Receiver stated that if such an offer could not be obtained by 5.00 p.m. on 13 November 1998 he intended to close the business down on the following Monday;
(d)Having undertaken to provide an information package for purchasers by the close of business on 12 November 1998 the Receiver failed to provide such a package until the end of the following week;
(e)Attempts by the directors to negotiate a sale of the business floundered in the absence of an information package;
(f)In particular Burnes considered himself obliged to inform potential purchasers that the offer was required by 5.00 p.m. the following day which alerted potential purchasers to the alternative strategy of sitting back and waiting for the collapse of Florgale and an inevitable "fire sale" of its assets;
(g)The Receiver refused to accept immediately a "formal offer" of $100,000 for 7,228 units of particular stock relating to a Coles Myer contract and the offer lapsed and an opportunity was lost.
(h)Stock with a face value of $1,792,794 was sold for a net return of $56,000;
(i)In conducting the sale of stock by auction the Receiver's staff ignored advice from the directors of better ways to dispose of stock including dealing directly with clients of the Florgale group.
It was submitted by Mr P Collinson who appeared for the fourth to tenth plaintiffs that all of these matters gave rise to a serious question to be tried as to whether the Receiver breached duties owed under s.420A and ss.232(1) and (4) of the Corporations Law together with duties implied by general law not to sacrifice the interests of the plaintiffs in realising the assets charged by the Florgale Group.
Insofar as the attitude of the liquidator was concerned, it was apparent that the liquidator did not hold an adverse opinion about the prospects of success of the proceeding. Indeed, the liquidator did not express a view one way or the other. The courts have observed that an especially relevant matter for the court to take account of is the attitude of the liquidator: See Scarel Pty Ltd v City Loan and Credit Corp Pty Ltd;[10] also Cadima Express v DCT.[11] In the present matter I am not assisted in any way by a known or expressed attitude on the part of the liquidator. Clearly the liquidator was in the best position to make an assessment as to what would be in the best interests of the companies in liquidation. He has declined to do so and abrogated that assessment to the court. The liquidator was merely concerned about the risk that he might be exposed to if significant costs orders were obtained against him personally by the defendants. Of course, in adopting this attitude the liquidator misconceived his exposure to costs as the proceeding was instituted in the name of the companies and hence the liquidator does not face a costs risk (see Aliprandi v Griffith Vintners; Cadima Express v DCT).
[10] (1988) 17 FCR 344; 79 ALR 483 per Gummow
[11] supra at 537
It was submitted on behalf of the fourth to tenth plaintiffs that the Florgale group will not incur any additional legal costs if the court acceded to this application. Further, those plaintiffs offered as a condition of leave being granted to pursue the proceeding to assume liability for all legal costs incurred by the Florgale group.
In Garden Mews v Butler,[12] McLelland J stated:
" … the court should not allow its processes to be used in a way which would erect procedural barriers or obstacles to the prosecution of these claims on behalf of the company, and the appointment of a receiver of the relevant causes of action (perhaps more accurately rights of action) with power to enforce the same in the name of the company is an appropriate means of avoiding procedural injustice. The proposal that Mr Pollnow himself be appointed as receiver is supported by the other director of the company, Mr Butler. Mr Pollnow offers to assume liability for all legal costs incurred by the company in relation to the prosecution of the claims in question. In these circumstances I propose to accede to the application to appoint Mr Pollnow as receiver of the relevant rights of action with power to prosecute proceedings in the name of the company to endorse the same, provided that he gives appropriate undertakings to the court relating to his personal liability for any costs thereby incurred."
[12]Garden Mews-St. Leonards v. Butler Pollnow P/L (1994) 9 ACLR 82, 95.
It was submitted for the fourth to tenth plaintiffs that this is a like case and that to deny the application would be to allow procedural obstacles to impede a trial on the merits of legitimate causes of action.
The test to be applied in cases such as the present warrants further analysis. In Magarditch the full court of the Federal Court considered that there was very little difference between adopting the approach of being satisfied that the claim has a "solid foundation and would give rise to a serious dispute"[13] or the test that the proposed action "has some arguable foundation"[14]. Ultimately, in Magarditch the court appeared to broadly follow the test of looking for a solid foundation or what might be otherwise termed the "Vagrand" test. A similar approach was applied in Cadima.[15] In my view, with respect, in Vagrand the Full Court of the Federal Court after a thorough analysis of the authorities[16] stated the proper approach:
"Upon a close reading of the relevant authorities, it is apparent to us that the courts have not in fact required applicants for leave to demonstrate a prima facie case against the company in liquidation, in the technical sense of that term. They have required to be affirmatively satisfied that the claim has a solid foundation and gives rise to a serious dispute. Having regard to the course actually taken by the courts, the term "prima facie case" is misleading. Perhaps it should be avoided in the future.
The test which has actually been applied is akin to that now used in considering whether interlocutory relief should be granted: "a serious question to be tried". See Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153, where Mason ACJ made it clear, with reference to the very same question which arose in the context of an interlocutory debate, that the test of "a serious question to be tried" is generally to be preferred to that of "a prima facie case". It is appropriate that the same standard of proof of the merits should be required for each of these forms of relief. In a particular case an applicant may need both orders. We would think it anomalous if an applicant had to meet a higher requirement merely to commence an action than that necessary to obtain an order potentially imposing a substantial burden on the respondent."
[13] See Vagrand Pty Ltd (in liq) v Fielding, supra.
[14]Liprandi v Griffiths Vintners Pty Ltd (in liq) supra.
[15] At 537.
[16] Citing in particular Ogilvie-Grant v East (1983) 1 ACLC 742, 743-745.
I turn then to consider whether in fact in the present case the fourth to tenth plaintiffs have satisfied the test of a serious question to be tried. In making this assessment I am mindful of the observations of McPherson J (as he then was) in Ogilvie-Grant v East[17] to the effect that an applicant in circumstances such as the present ought be able to demonstrate to a satisfactory degree factors including the amount and seriousness of the claim.
[17] At 743-745.
On the face of the statement of claim and the affidavit of Mr Burnes there are two issues that arise with respect to the fourth to tenth plaintiffs. First, the fact that they bring their claim of breach of duty against the receiver effectively based upon those plaintiffs' status as guarantors. Second, they bring their claim of breach of duty against the bank on the basis that the receiver was the agent of the bank.
In the statement of claim it is alleged that the receiver owed duties to "the plaintiffs" that is, the Florgale companies and the security providers arising from the fact of the giving of the relevant securities, the succession of BNZ by NAB and the appointment of Orders as receiver.[18]
[18] See para 15 of the statement of claim.
Clearly a receiver owes a duty of care to a company in the conduct of the sale of the company's assets: see Re B. Johnson & Co (Builders) Limited.[19] A receiver is under a duty to take reasonable care to obtain the true market value at the date of sale or a proper price for the realisation of the assets: see Cuckmere Brick Co Limited v Mutual Finance Limited.[20]
[19] (1955) Ch. 634, CA.
[20] (1971) Ch. 949, 966, 978.
Turning to the security providers, the fourth to tenth plaintiffs, a receiver owes a commensurate duty of care to any other mortgagee and guarantor of a company's debt: see Midland Bank Limited v Joliman Finance Limited[21]; Alliance Acceptance Co Limited v Graham[22]; also, Standard Chartered Bank Limited v Walker[23]; American Express v Hurley.[24]
[21] (1967) 203 Estate Gazette 1039.
[22] (1974-75) 10 SASR 220.
[23] (1982) 1 WLR 1410 CA.
[24] (1985) 3 All ER 564; and Picarda, The Law Relating to Receivers, Managers and Administrators (2nd ed) p.115.
The allegations contained in the statement of claim and the affidavit of Mr Burnes against the receiver stand unrebutted. For present purposes I need only be satisfied that the plaintiffs are able to demonstrate a serious question to be tried. I am so satisfied on the basis of the affidavit of Mr Burnes.
Is there any other barrier or obstacle to the claim of breach of duty by the plaintiffs against the receiver? The fourth to tenth plaintiffs include themselves in the statement of claim globally as "the plaintiffs". They do not differentiate between their rights as guarantors and those of the Florgale companies as principal debtors. The statement of claim does not plead the plaintiffs' claim as an equitable set off against the receiver or, for that matter, the bank. If it did so, the fourth to tenth plaintiffs would face an insurmountable obstacle. As a matter of legal principle, a guarantor cannot rely upon a cross-claim for damages which may be available to the principal debtor as against the creditor in reduction of liability under the guarantee: see Indrisie v General Credits Limited.[25] However, that is not a matter that need be determined at this time as the present application is concerned with leave to proceed with respect to the Florgale companies, the principal debtor.
[25] (1985) VR 251.
I am satisfied that the fourth to tenth plaintiffs have fulfilled the necessary test to be granted leave under s.477(6) of the Corporations Law in relation to the claim against the receiver and leave will be granted accordingly.
The plaintiffs allege, further, that as a result of the breaches by the receiver of the duties owed as previously described, NAB in turn owed duties to each of the plaintiffs to consider their interests in realising the assets of the Florgale companies. It is alleged that NAB breached those duties.
Mr I. Jones who appeared for the defendants argued that the allegations made by the plaintiffs against the bank were tantamount to treating the receiver as the agent of the bank with a consequential transfer of duty of care to the bank. The agency of a receiver is very special and limited: see R v Board of Trade, ex parte St Martin Preserving Co Limited.[26] It is well established principle that any receiver appointed pursuant to a power of appointment is considered the agent of the mortgagor or, in other words, applying the principle to the present circumstances, the receiver is to be considered as the agent of the Florgale companies: see Gosling v Gaskell[27]; see also, Expo International Pty Ltd v Chant & Ors[28]; Australian Mutual Providence Society v GEO Myers & Co Limited (in liq).[29]
[26] (1965) 1 QB 603, 617.
[27] (1896) 1 QB 669; (1897) AC 575.
[28] (1979) 2 NSWLR 820.
[29] (1931) 47 CLR 65, 82.
For the purposes of the present application I encountered some difficulty in that the allegations contained in the statement of claim do not specifically plead that the receiver was acting as the agent of NAB although, arguably, the allegations may be construed as tantamount to such an allegation. Nevertheless, and more relevantly for present purposes it is alleged by the plaintiffs in the statement of claim that NAB aided, abetted, counselled or procured the receiver to contravene s.420A of the Corporations Law and, further, participated in a contravention of s.232(4) of the Law. If the plaintiffs purport to bring their claim against NAB on the basis that the receiver was the agent of the bank they would be vulnerable to an application to strike out or stay such allegations under Order 23 of the Rules. In light of the allegations by the plaintiffs against NAB with respect to ss.420A and 232(4) of the Corporations Law it is unnecessary for me to determine the agency issue. It may well be on another occasion that the statement of claim will be the subject of challenge but that is a matter for another time.
For present purposes I am satisfied on the basis of the statement of claim and the matters contained in the affidavit of Mr Burnes that there is a serious question to be tried with respect to the claim against NAB.
In my view, orders should be made authorising the fourth to tenth plaintiffs, at their own expense and risk as to costs, to use the name of the Florgale companies, that is the first to third plaintiffs as co-plaintiffs in the proceedings against Orders and NAB.
A further matter that requires consideration is the financial position of the fourth to tenth plaintiffs if they are to conduct the proceeding in the name of the Florgale companies at their own expense. There was evidence before me contained in the affidavit of Mr O'Donnell sworn 8 September 2000 concerning the financial position of the fourth to tenth plaintiffs. The evidence consisted of statutory declarations as to their assets, liabilities, income and expenditure.[30] Statutory declarations were exhibited to the affidavit of Mr O'Donnell by each of the fourth to tenth plaintiffs. They revealed uniformly that each of the plaintiffs are impecunious or of limited means. As a consequence, the defendants submitted that leave should not be granted to the fourth to tenth plaintiff to continue the proceeding on behalf of the first to third plaintiffs without appropriate security. The defendants' solicitor Mr Neylon in an affidavit sworn 12 September 2000 estimated that the costs of the proceeding for the defendants would be in the order of $150,000-$220,000 (depending upon whether or not senior counsel is retained on behalf of the defendants).
[30] See Exhibit FMO'D-7.
In my view the issue of whether security for costs should be imposed upon the plaintiffs is a matter to be determined separately from the present application. I am mindful that in some of the authorities where the court has been concerned with applications for leave to proceed as in the present case security has been imposed as a condition to the granting of leave[31]. However, generally speaking those authorities were concerned with circumstances that can be distinguished from the present. For example, in Cadima Express the liquidator did not wish to pursue the proceeding because an asset of the company would be placed at risk and it was considered appropriate that security for costs be ordered so as to protect the assets of the company and its creditors. Those circumstances do not arise here.
[31] See Cadima Express Pty Ltd v DCT; Aliprandi v Griffith Vintners Pty Ltd.
In any event, the circumstances generally described in the statement of claim and the affidavit of Mr Burnes invite the conclusion that an order for security would stultify the ability of the plaintiffs to pursue a credible case: see MA Productions Pty Ltd v Austarama Television Pty Ltd[32]; Drumdurno Pty Ltd v Braham.[33] Furthermore, in my view it is a relevant consideration in the exercise of the discretion as to whether to impose a condition or security that the proceeding would, if successful, benefit creditors of the company: see Spiel v Commodity Brokers Australia Pty Ltd (in liq)[34]; also, Good Motel Pty Ltd (in liq) v Shepherd.[35]
[32] (1982) 7 ACLR 97.
[33] (1982) 42 ALR 563.
[34] (1983) 8 ACLR 410, 416.
[35] (1992) 110 FLR 87.
Ultimately, I do not consider it appropriate to order security for costs as a condition to the granting of leave to the fourth to tenth plaintiffs. If the defendants wish to pursue that matter on another occasion it can be considered then.
I direct the parties to prepare minutes of orders in accordance with these reasons together with appropriate orders and directions for the expeditious conduct of this proceeding in accordance with the requirements of the Commercial List.
---
6
0