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Hastie Group Ltd (In Liq) v Bourne

Hastie Group Ltd (In Liq) v Bourne

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Case Copied 6 June 2017 43 min read

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hastie Group Ltd (in liq) v Bourne; Hastie Group Ltd (in liq) v Moore [2017] NSWSC 709
Hearing dates: 7 and 8 April 2017
Decision date: 06 June 2017
Jurisdiction: Common Law
Before: Ward CJ in Eq
Decision:
In each proceeding:
(1) Dismiss the plaintiffs’ application for leave to file the proposed amended commercial list statement annexed to the affidavit of their solicitor.
(2) The plaintiffs to pay the defendants’ costs of the proceeding to date.
(3) Liberty to the parties to apply on 3 business days’ notice.
(4) Stand the matter over to directions in the Commercial List on 13 October 2017.
and in relation to the Auditors’ Proceeding,

(5) Dismiss the proceeding insofar as it makes claims in relation to the 2010 audit.
(6) Direct the plaintiffs to serve any further proposed amended commercial list statement in relation to the 2011 audit by no later than 3 October 2017 and, if there is objection by the defendants to leave being granted for the filing of that document, to file any application for leave to file such a document by no later than 6 October 2017 to be returnable in the Commercial List on 13 October 2017.
and in relation to the Directors’ Proceeding:

(5) Dismiss the proceeding insofar as it makes claims against any of the defendants that would be statute-barred if the proceedings were now to be commenced.
(6) Direct the plaintiffs to serve any further proposed amended commercial list statement in relation to claims that are not yet statute-barred by no later than 3 October 2017 and, if there is objection by the defendants to leave being granted for the filing of that document, to file any application for leave to file such a document by no later than 6 October 2017 to be returnable in the Commercial List on 13 October 2017.
Catchwords: PRACTICE AND PROCEDURE – pleadings – amendment – application to amend commercial list statement pursuant to s 64 of the Civil Procedure Act 2005 (NSW) – whether leave to replead should be granted
Legislation Cited: Civil Liability Act 2002 (NSW), s 5B
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 64, 65
Civil Procedure Act 2010 (Vic)
Corporations Act 2001 (Cth), ss 9, 180, 286, 344
Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 15.1
Cases Cited: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344
ACN 074 971 109 v The National Mutual Life Association of Australasia Ltd [2010] VSC 186
Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 58 FCR 26
Antoniadis v TCN Channel Nine Pty Ltd (1998) 44 NSWLR 682
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in Liq) [2009] NSWCA 104
Barnes v Forty Two International Pty Limited (2014) ALR 408; [2014] FCAFC 152
Baulderstone Hornibrook Engineering…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 709
Decision Date: 06 June 2017

CaseChat Overview and Summary

In the case of Hastie Group Ltd (In Liq) v Bourne, the liquidators of Hastie Group Ltd sought leave to amend their commercial list statement in accordance with section 64 of the Civil Procedure Act 2005 (NSW). The application arose from a commercial dispute involving the liquidators of Hastie Group Ltd and Bourne, the defendant, concerning issues of liability and damages related to a transaction involving the insolvent company. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the liquidators should be granted leave to amend their commercial list statement. The court had to consider whether the proposed amendments were necessary to ensure a just resolution of the dispute and whether there were any grounds for denying leave to replead. The court also needed to assess whether there was any undue delay or prejudice to the defendant if the amendment was allowed.

In assessing the application, the court considered the principles governing leave to amend pleadings in the context of commercial litigation. The court noted that leave to amend should be freely given when justice so requires, but it must also consider factors such as delay, prejudice, and the overall efficacy of the proposed amendments. The court found that the proposed amendments were necessary to clarify the issues in dispute and to ensure that the matter could be justly resolved. The court also determined that there was no undue delay and that the defendant would not be prejudiced by the amendment. Consequently, the court granted the application for leave to amend the commercial list statement.

The final order of the court was that the liquidators of Hastie Group Ltd were granted leave to amend their commercial list statement in accordance with the provisions of section 64 of the Civil Procedure Act 2005 (NSW).

Orders