Hillier v Martin (No 3)

[2021] FCA 709

FEDERAL COURT OF AUSTRALIA

Hillier v Martin (No 3) [2021] FCA 709

File number:

SAD 113 of 2020

Judgment of:

CHARLESWORTH J

Date of judgment:

24 June 2021

Date of publication of reasons:

28 June 2021

Legislation:

Trustee Act 1936 (SA) s 59C

Federal Court Rules 2011 (Cth) r 9.05

Division:

General Division

Registry:

South Australia

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs:

32

Date of hearing:

24 June 2021

Counsel for the Applicant:

Mr R Whitington QC with Mr O’Leary

Solicitor for the Applicant:

Sykes Bidstrup

Counsel for the Respondent:

Mr S Ower SC

Solicitor for the Respondent:

Norman Waterhouse

ORDERS

SAD 113 of 2020

BETWEEN:

JAMES HILLIER

Applicant

AND:

VICTORIA MARTIN

Respondent

ORDER MADE BY:	CHARLESWORTH J
DATE OF ORDER:	24 JUNE 2021

THE COURT ORDERS THAT:

1.The applicant has leave to amend the statement of claim by:

(a)inserting the amendments in the proposed amended paragraphs 70.4 and 70.5 of the proposed second amended statement of claim in the form of annexure JH59 to the affidavit of James Hillier sworn on 17 June 2021; and

(b)deleting the previously numbered paragraphs 75.4 to 75.7 of the first amended statement of claim.

2.The applicant has leave to introduce the pleas proposed at paragraphs 73.5 and 75.4 of the proposed second amended statement of claim on the condition that Nordburger Operations Pty Ltd be joined as the second respondent in the proceedings and the applicant is granted leave to join Nordburger Operations Pty Ltd as a party for that purpose.

3.The leave granted in paragraphs 1 and 2 is to be exercised on or before 28 June 2021.

4.Subject to paragraph 5, the applicant has leave to file a third amended statement of claim containing the plea presently proposed at paragraph 75.6 of the proposed second amended statement of claim on the condition that the applicant join as a party to the proceeding those persons comprising the “Craig Interests” referred to in paragraph 3 of the proposed second amended statement of claim and the applicant has leave to join those persons as a party for that purpose.

5.For the purpose of paragraph 4 those persons comprising the “Craig Interests” are:

(a)Erik Vari Pty Ltd; and

(b)Robert Craig.

6.The applicant has liberty to apply to vary the names of the persons identified in paragraph 5.

7.The leave granted in paragraph 4 is to be exercised on or before 5 July 2021.

8.On or before 19 July 2021 the first respondent is to file and serve an amended defence.

9.In the event that the leave in paragraph 2 is exercised, on or before 19 July 2021 the second respondent Nordburger Operations Pty Ltd is to file and serve a defence.

10.On or before 26 July 2021 the applicant is to file and serve:

(a)an amended reply to the first respondent’s amended defence; and

(b)if so advised, a reply, to the second respondent’s defence (if any).

11.Liberty to apply.

12.Judgment is reserved on the applicant’s…