Grant-Taylor v Babcock and Brown Limited (In Liquidation) (No 2)

[2014] FCA 660

FEDERAL COURT OF AUSTRALIA

Grant-Taylor v Babcock & Brown Limited (In Liquidation) (No 2) [2014] FCA 660

Citation:	Grant-Taylor v Babcock & Brown Limited (In Liquidation) (No 2) [2014] FCA 660
Parties:	ANDREW GRANT-TAYLOR, CRAIGELLACHIE PTY LTD ACN 065 937 966, NIELMA GRANT-TAYLOR, ANDREW CASEY THAM, BRUNO NERI, CHARMAINE MARY NERI, CAROLYN JOY KELMAR, CHARLES JAMES LEOTTA, DANIEL FRANJIC, DANIEL RAMLU, SAROJINI RAMLU, ENORE QUERIN, MARIA QUERIN, JOANNE YACOEL, ERIC YACOEL, ERNEST MICHAEL REAVELL, EWEN MCPHERSON, GERRY PETER O'HEHIR, GRAEME CUCEUL, JOHN CHRISTOPHER PARISOTTO, JUDITH MAE NGUYEN, KEVIN EDWARD CROSLAND, LYNDSEY JOAN CROSLAND, LAGBAIL PTY LTD ACN 010 395 632, LESLIE GEORGE MILLER, MARIA GIULIA FATIGUSO, NANCY LAMBROPOULOS, PAUL ROBERT HACK, RONALD MCDERMOTT, STEPHEN DEW, RIKA DEW, STEVE CONTOGIANNIS, TERENCE MCDONALD, FLEUR FANSELOW, TERRY JOHN BORLAND, WAYNE JAMES FOOTE, PAULINE FOOTE, G HARVEY NOMINEES PTY LTD ACN 001 021 236, GRAEME LESLIE LAIDLER, JUNE ISOBEL LAIDLER, GRAHAM KENNETH GIRDLER, ROBYN ANN GIRDLER, LAURENT LUCIEN BORDES, CECILE MADELEINE BORDES, MUSTAFA FIKRET, GUNSEL FIKRET, NEVILLE ALLAN LAKE, JANET MARY LAKE, NEWKS INVESTMENTS PTY LIMITED ACN 001 426 348, PETER ROBERT MACMORRAN, IRENE VALENTINE MACMORRAN, S HARVEY NOMINEES PTY LIMITED ACN 123 497 334, YOOGALU PTY LTD ACN 002 269 132, BRENDAN CHRISTOPHER TAYLOR , MARIANA TAYLOR, RICHARD TERANCE GOLDBURG, CHRISTINE ROSE SHEARING, WILLIAM MATTHEW DUNSTAN, ROSEMARY JANE DUNSTAN, BENJAMIN KARL RUDZYN, CHRISTOPHER JOHN GARVAN, JAMES BARTHOLOMEW WIRTH, JAMES DOUGLAS HAIG MUIR, JOSEPH RUDZYN, SUSAN RUDZYN, PETER BRUCE RIES, PETER RIES SUPERANNUATION PTY LTD ACN 123 435 101, REMY SAGE, SAMUEL RUDZYN, ROBYN RUDZYN, WILLIAM ROBERT ECCLESTON, GEORGE DOUGLAS, MICHAEL GRAHAM SHIELDS, AMANDA JOY SHIELDS, MICHAEL MATTHEW MOORE, ANTHONY JOHN THOMAS MOORE and WEIDONG CHEN v BABCOCK & BROWN LIMITED (IN LIQUIDATION) ACN 108 614 955 and DAVID LOMBE
File number:	NSD 2070 of 2012
Judge:	PERRAM J
Date of judgment:	13 June 2014
Cases cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 cited Grant-Taylor v Babcock & Brown Limited (In Liquidation) (No 1) [2014] FCA 437 cited
Date of hearing:	13 June 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	10
Counsel for the Plaintiffs:	Mr R White
Solicitor for the Plaintiffs:	Thomas Booler & Co
Counsel for the Defendants:	Mr J Lockhart SC and Mr J Hutton
Solicitor for the Defendants:	Ashurst Australia

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2070 of 2012

BETWEEN:

ANDREW GRANT-TAYLOR
First Plaintiff

CRAIGELLACHIE PTY LTD ACN 065 937 966
Second Plaintiff

NIELMA GRANT-TAYLOR
Third Plaintiff

ANDREW CASEY THAM
Fourth Plaintiff

BRUNO NERI
Fifth Plaintiff

CHARMAINE MARY NERI
Sixth Plaintiff

CAROLYN JOY KELMAR
Seventh Plaintiff

CHARLES JAMES LEOTTA
Eighth Plaintiff

DANIEL FRANJIC
Ninth Plaintiff

DANIEL RAMLU
Tenth Plaintiff

SAROJINI RAMLU
Eleventh Plaintiff

ENORE QUERIN
Twelfth Plaintiff

MARIA QUERIN
Thirteenth Plaintiff

JOANNE YACOEL
Fourteenth Plaintiff

ERIC YACOEL
Fifteenth Plaintiff

ERNEST MICHAEL REAVELL
Sixteenth Plaintiff

EWEN MCPHERSON
Seventeenth Plaintiff

GERRY PETER O'HEHIR
Eighteenth Plaintiff

GRAEME CUCEUL
Nineteenth Plaintiff

JOHN CHRISTOPHER PARISOTTO
Twentieth Plaintiff

JUDITH MAE NGUYEN
Twenty-First Plaintiff

KEVIN EDWARD CROSLAND
Twenty-Second Plaintiff

LYNDSEY JOAN CROSLAND
Twenty-Third Plaintiff

LAGBAIL PTY LTD ACN 010 395 632
Twenty-Fourth Plaintiff

LESLIE GEORGE MILLER
Twenty-Fifth Plaintiff

MARIA GIULIA FATIGUSO
Twenty-Sixth Plaintiff

NANCY LAMBROPOULOS
Twenty-Seventh Plaintiff

PAUL ROBERT HACK
Twenty-Eighth Plaintiff

RONALD MCDERMOTT
Twenty-Ninth Plaintiff

STEPHEN DEW
Thirtieth Plaintiff

RIKA DEW
Thirty-First Plaintiff

STEVE CONTOGIANNIS
Thirty-Second Plaintiff

TERENCE MCDONALD
Thirty-Third Plaintiff

FLEUR FANSELOW
Thirty-Fourth Plaintiff

TERRY JOHN BORLAND
Thirty-Fifth Plaintiff

WAYNE JAMES FOOTE
Thirty-Sixth Plaintiff

PAULINE FOOTE
Thirty-Seventh Plaintiff

G HARVEY NOMINEES PTY LTD ACN 001 021 236
Thirty-Eighth Plaintiff

GRAEME LESLIE LAIDLER
Thirty-Ninth Plaintiff

JUNE ISOBEL LAIDLER
Fortieth Plaintiff

GRAHAM KENNETH GIRDLER
Forty-First Plaintiff

ROBYN ANN GIRDLER
Forty-Second Plaintiff

LAURENT LUCIEN BORDES
Forty-Third Plaintiff

CECILE MADELEINE BORDES
Forty-Fourth Plaintiff

MUSTAFA FIKRET
Forty-Fifth Plaintiff

GUNSEL FIKRET
Forty-Sixth Plaintiff

NEVILLE ALLAN LAKE
Forty-Seventh Plaintiff

JANET MARY LAKE
Forty-Eighth Plaintiff

NEWKS INVESTMENTS PTY LIMITED ACN 001 426 348
Forty-Ninth Plaintiff

PETER ROBERT MACMORRAN
Fiftieth Plaintiff

IRENE VALENTINE MACMORRAN
Fifty-First Plaintiff

S HARVEY NOMINEES PTY LIMITED ACN 123 497 334
Fifty-Second Plaintiff

YOOGALU PTY LTD ACN 002 269 132
Fifty-Third Plaintiff

BRENDAN CHRISTOPHER TAYLOR
Fifty-Fourth Plaintiff

MARIANA TAYLOR
Fifty-Fifth Plaintiff

RICHARD TERANCE GOLDBURG
Fifty-Sixth Plaintiff

CHRISTINE ROSE SHEARING
Fifty-Seventh Plaintiff

WILLIAM MATTHEW DUNSTAN
Fifty-Eighth Plaintiff

ROSEMARY JANE DUNSTAN
Fifty-Ninth Plaintiff

BENJAMIN KARL RUDZYN
Sixtieth Plaintiff

CHRISTOPHER JOHN GARVAN
Sixty-First Plaintiff

JAMES BARTHOLOMEW WIRTH
Sixty-Second Plaintiff

JAMES DOUGLAS HAIG MUIR
Sixty-Third Plaintiff

JOSEPH RUDZYN
Sixty-Fourth Plaintiff

SUSAN RUDZYN
Sixty-Fifth Plaintiff

PETER BRUCE RIES
Sixty-Sixth Plaintiff

PETER RIES SUPERANNUATION PTY LTD ACN 123 435 101
Sixty-Seventh Plaintiff

REMY SAGE
Sixty-Eighth Plaintiff

SAMUEL RUDZYN
Sixty-Ninth Plaintiff

ROBYN RUDZYN
Seventieth Plaintiff

WILLIAM ROBERT ECCLESTON
Seventy-First Plaintiff

GEORGE DOUGLAS
Seventy-Second Plaintiff

MICHAEL GRAHAM SHIELDS
Seventy-Third Plaintiff

AMANDA JOY SHIELDS
Seventy-Fourth Plaintiff

MICHAEL MATTHEW MOORE
Seventy-Fifth Plaintiff

ANTHONY JOHN THOMAS MOORE
Seventy-Sixth Plaintiff

WEIDONG CHEN
Seventy-Seventh Plaintiff

AND:

BABCOCK & BROWN LIMITED (IN LIQUIDATION) ACN 108 614 955
First Defendant

DAVID LOMBE
Second Defendant

JUDGE:	PERRAM J
DATE OF ORDER:	13 JUNE 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicants’ application for leave to amend their further amended points of claim be dismissed.

2.The applicants pay the respondents’ costs of the amendment application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2070 of 2012

BETWEEN:

ANDREW GRANT-TAYLOR
First Plaintiff

CRAIGELLACHIE PTY LTD ACN 065 937 966
Second Plaintiff

NIELMA GRANT-TAYLOR
Third Plaintiff

ANDREW CASEY THAM
Fourth Plaintiff

BRUNO NERI
Fifth Plaintiff

CHARMAINE MARY NERI
Sixth Plaintiff

CAROLYN JOY KELMAR
Seventh Plaintiff

CHARLES JAMES LEOTTA
Eighth Plaintiff

DANIEL FRANJIC
Ninth Plaintiff

DANIEL RAMLU
Tenth Plaintiff

SAROJINI RAMLU
Eleventh Plaintiff

ENORE QUERIN
Twelfth Plaintiff

MARIA QUERIN
Thirteenth Plaintiff

JOANNE YACOEL
Fourteenth Plaintiff

ERIC YACOEL
Fifteenth Plaintiff

ERNEST MICHAEL REAVELL
Sixteenth Plaintiff

EWEN MCPHERSON
Seventeenth Plaintiff

GERRY PETER O'HEHIR
Eighteenth Plaintiff

GRAEME CUCEUL
Nineteenth Plaintiff

JOHN CHRISTOPHER PARISOTTO
Twentieth Plaintiff

JUDITH MAE NGUYEN
Twenty-First Plaintiff

KEVIN EDWARD CROSLAND
Twenty-Second Plaintiff

LYNDSEY JOAN CROSLAND
Twenty-Third Plaintiff

LAGBAIL PTY LTD ACN 010 395 632
Twenty-Fourth Plaintiff

LESLIE GEORGE MILLER
Twenty-Fifth Plaintiff

MARIA GIULIA FATIGUSO
Twenty-Sixth Plaintiff

NANCY LAMBROPOULOS
Twenty-Seventh Plaintiff

PAUL ROBERT HACK
Twenty-Eighth Plaintiff

RONALD MCDERMOTT
Twenty-Ninth Plaintiff

STEPHEN DEW
Thirtieth Plaintiff

RIKA DEW
Thirty-First Plaintiff

STEVE CONTOGIANNIS
Thirty-Second Plaintiff

TERENCE MCDONALD
Thirty-Third Plaintiff

FLEUR FANSELOW
Thirty-Fourth Plaintiff

TERRY JOHN BORLAND
Thirty-Fifth Plaintiff

WAYNE JAMES FOOTE
Thirty-Sixth Plaintiff

PAULINE FOOTE
Thirty-Seventh Plaintiff

G HARVEY NOMINEES PTY LTD ACN 001 021 236
Thirty-Eighth Plaintiff

GRAEME LESLIE LAIDLER
Thirty-Ninth Plaintiff

JUNE ISOBEL LAIDLER
Fortieth Plaintiff

GRAHAM KENNETH GIRDLER
Forty-First Plaintiff

ROBYN ANN GIRDLER
Forty-Second Plaintiff

LAURENT LUCIEN BORDES
Forty-Third Plaintiff

CECILE MADELEINE BORDES
Forty-Fourth Plaintiff

MUSTAFA FIKRET
Forty-Fifth Plaintiff

GUNSEL FIKRET
Forty-Sixth Plaintiff

NEVILLE ALLAN LAKE
Forty-Seventh Plaintiff

JANET MARY LAKE
Forty-Eighth Plaintiff

NEWKS INVESTMENTS PTY LIMITED ACN 001 426 348
Forty-Ninth Plaintiff

PETER ROBERT MACMORRAN
Fiftieth Plaintiff

IRENE VALENTINE MACMORRAN
Fifty-First Plaintiff

S HARVEY NOMINEES PTY LIMITED ACN 123 497 334
Fifty-Second Plaintiff

YOOGALU PTY LTD ACN 002 269 132
Fifty-Third Plaintiff

BRENDAN CHRISTOPHER TAYLOR
Fifty-Fourth Plaintiff

MARIANA TAYLOR
Fifty-Fifth Plaintiff

RICHARD TERANCE GOLDBURG
Fifty-Sixth Plaintiff

CHRISTINE ROSE SHEARING
Fifty-Seventh Plaintiff

WILLIAM MATTHEW DUNSTAN
Fifty-Eighth Plaintiff

ROSEMARY JANE DUNSTAN
Fifty-Ninth Plaintiff

BENJAMIN KARL RUDZYN
Sixtieth Plaintiff

CHRISTOPHER JOHN GARVAN
Sixty-First Plaintiff

JAMES BARTHOLOMEW WIRTH
Sixty-Second Plaintiff

JAMES DOUGLAS HAIG MUIR
Sixty-Third Plaintiff

JOSEPH RUDZYN
Sixty-Fourth Plaintiff

SUSAN RUDZYN
Sixty-Fifth Plaintiff

PETER BRUCE RIES
Sixty-Sixth Plaintiff

PETER RIES SUPERANNUATION PTY LTD ACN 123 435 101
Sixty-Seventh Plaintiff

REMY SAGE
Sixty-Eighth Plaintiff

SAMUEL RUDZYN
Sixty-Ninth Plaintiff

ROBYN RUDZYN
Seventieth Plaintiff

WILLIAM ROBERT ECCLESTON
Seventy-First Plaintiff

GEORGE DOUGLAS
Seventy-Second Plaintiff

MICHAEL GRAHAM SHIELDS
Seventy-Third Plaintiff

AMANDA JOY SHIELDS
Seventy-Fourth Plaintiff

MICHAEL MATTHEW MOORE
Seventy-Fifth Plaintiff

ANTHONY JOHN THOMAS MOORE
Seventy-Sixth Plaintiff

WEIDONG CHEN
Seventy-Seventh Plaintiff

AND

BABCOCK & BROWN LIMITED (IN LIQUIDATION) ACN 108 614 955
First Defendant

DAVID LOMBE
Second Defendant

JUDGE:	PERRAM J
DATE:	13 JUNE 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants apply to amend their further amended points of claim by the addition of a further ground of non-disclosure.  The non-disclosure relates to an allegation that between August 2008 and January 2009, Babcock & Brown Limited failed to disclose to the ASX that it expected the group’s earning results for the year ended 31 December 2008 to be materially different from its results and forecasts published in 2008.  The facts, matters and circumstances which underlie that proposed allegation appear to have become known to the solicitors acting for the applicants on or around the middle of May 2014. 

2. They came to the attention of the applicants’ solicitors following the inspection of documents pursuant to orders which had been made by me at an earlier time.  In turn, those orders were made by me consequent upon an earlier successful amendment application by the applicants in which I permitted them to raise, over objection, a number of fresh grounds of non-disclosure: see Grant-Taylor v Babcock & Brown Limited (In Liquidation) (No 1) [2014] FCA 437.

3. At the time I permitted those amendments to be raised I noted that there had been, relevantly, delay by the applicants in bringing forth those amendments.  I did so as part of a process of reasoning in which in the course of considering whether the amendment should be allowed I weighed, in terms of fairness, the respective conduct of the parties.  I found that, at least when it came to the question of attributing blame for what had occurred, blame was to be, so far as it was relevant, laid at the feet of the applicants rather than the respondents.  In consequence of allowing the amendment, I made a series of timetabling orders which imposed upon the respondents, but also the applicants, a reasonable degree of hardship with a view to ensuring that the trial would be able to commence with an estimate of three days on Monday 14 July 2014. 

4. Since that process has been embarked upon, there have been further debates between the parties as to their ability to meet the trial date with a full examination of the expert evidence.  This afternoon I have adjusted the timetable which was in place to afford the applicants yet another indulgence in the form of giving them more time to put on some unexpected, but essential, evidence from a Professor Frino. If I were now to permit the amendments which are suggested it seems to me that it is very unlikely that those trial dates would be able to be achieved in a fashion which would be fair to the respondents. 

5. I have already exposed the respondents to considerable hardship in terms of making them deal with amendments on a short timetable and compelling them over objection to deal in an extremely expedited fashion with the evidence of Professor Frino.  It would, in my opinion, be quite unfair to allow this case now to be raised at the heel of the hunt.  More is this so in circumstances where, as I have already indicated, the blame for the delay in bringing forth the first set of amendments lies in the applicants’ camp.  If the previous amendments had occurred at an earlier time, the documents which were unearthed by Mr Joukhador in the middle of May would have come to light earlier and this application itself would have been made earlier. 

6. Against what seem to me to be fairly powerful considerations against granting the amendment, Mr White of counsel, appearing for the applicants, raised three matters.  The first was that this issue only arose because the documents in question were in the possession of the liquidators which were said in his submission to make it an unusual circumstance.  I do not accept that litigation in which liquidators are sued and where typically the documents are in the possession of a liquidator or, alternatively, a receiver, is a particularly special feature of litigation.  This is particularly so in this case where the applicants are represented by people who are plainly cognisant of the difficulties of this kind of litigation and who are, in my opinion, more than able to navigate the difficulties which arise. 

7. Secondly, it was put that the point which was sought to be raised was a ‘big point’.  I am prepared to accept that the point is an arguable one and obviously that is a matter which is to be taken into account.  I decline to form a view as to whether it is an extremely strong point or a very strong point, there being an inability on an application such as the present for me to form a view about that matter. 

8. The final matter which was raised was perhaps the most substantive of the points.  When I granted the applicants leave to amend on 16 April 2014, one of the circumstances which impelled me to that decision was the fact that this case is, perhaps for want of a better word, a test case and a number of other cases are lined up behind it.

9. I was persuaded at paragraphs 25 and 26 of my earlier reasons that that quality in the litigation meant that if I had not granted those amendments, it would simply mean that the same point would eventually be litigated in a new proceeding or in the other cases which are pending.  That is a powerful consideration and it was sufficient on the last occasion to persuade me that the amendments ought to be allowed.  However, there were a number of other factors involved in the last decision, one of which was the unanimous view of the parties at that time that allowing the amendments would not prejudice the trial date.  I think the situation has rather moved on since then. 

10. Regardless of what the parties think about the liability of the trial date at this point, in my opinion, to allow these amendments runs with it an extremely strong risk that the trial date will be lost.  It will also expose the respondents to a considerable unfairness, one to which I do not think they ought to be burdened with at this stage of litigation.  The principles which govern the granting of applications such as the present are well known and are specified by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. I take those into account. At the end of the day, it is a question of attempting to do justice between the parties as best one can. In my opinion, the applicants have had enough time to put their case in order and given that the trial is only a very short period of time off I do not think it would be just to permit the amendment to be raised at this late piece. For that reason, I dismiss the application with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:        20 June 2014