In the matter of Australian Unity Funds Management Limited

[2023] NSWSC 540

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Australian Unity Funds Management Limited [2023] NSWSC 540

Hearing dates:

4 May 2023, with further submissions received on 9 May 2023

Date of orders:

23 May 2023

Decision date:

23 May 2023

Jurisdiction:

Equity - Corporations List

Before:

Williams J

Decision:

Leave to amend granted in respect of some amendments and otherwise refused. Leave to lead expert evidence refused.

Catchwords:

PLEADINGS – amendment – application for leave to amend – whether proposed amendments articulate in greater detail a case already pleaded, or introduce a new case – no question of principle.

EVIDENCE – expert evidence – whether leave should be granted to plaintiff to lead expert evidence modelling projected future financial position of first defendant responsible entity at the time that its directors allegedly exercised their powers to cause the responsible entity to enter into certain transactions for an improper purpose – no question of principle.

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 58, 64

Corporations Act 2001 (Cth) s 601FC(1)(c)

Uniform Civil Procedure Rules 2005 (NSW) r 31.19

Cases Cited:

Advance Bank Australia Ltd v FAI Insurances Ltd (1987) 9 NSWLR 464

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Hancock v Rinehart (2015) 13 ASTLR 1; (2015) 106 ACSR 207; [2015] NSWSC 646

Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821; [1974] 1 NSWLR 68

NorthWest Healthcare Australia RE Limited v Australian Unity Funds Management Limited [2023] NSWSC 86

Rennie Golledge Pty Ltd v Ballard (2012) 82 NSWLR 231; [2012] NSWCA 376

Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285; [1987] HCA 11

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

NorthWest Healthcare Australia RE Limited (ACN 612 310 148) (as trustee of NWH Australia Hold Trust No. 2 and trustee of NorthWest Australia Hospital Investment No. 2 Bid Trust) (Plaintiff)
Australian Unity Funds Management Limited (ACN 071 497 115) (as responsible entity of Australian Unity Healthcare Property Trust) (First Defendant)
Australian Unity Strategic Holdings Pty Ltd (ACN 006 803 050) (Second Defendant)
Australian Unity Limited (ACN 087 648 888) (Third Defendant)
Dexus Funds Management Limited (ACN 060 920 783) (Fourth Defendant)
Dexus Wholesale Management Limited (ACN 159 301 907) (Fifth Defendant)
Dexus Property Services Pty Limited (ACN 080 918 252) (Sixth Defendant)

Representation:

Counsel:
Mr N Young KC with Ms T Wong SC and Ms R Mansted (Plaintiff)
Mr P D Crutchfield KC with Mr J J Rudd (First Defendant)
Mr M Darke SC with Ms A Smith (Second and Third Defendants)
Mr M Izzo with Mr J Burnett and Ms J Taylor (Fourth, Fifth and Sixth Defendants)

Solicitors:
Ashurst (Plaintiff)
Herbert Smith Freehills (First Defendant)
Allens (Second and Third Defendants)
King & Wood Mallesons (Australia) (Fourth, Fifth and Sixth Defendants)

File Number(s):

2021/171239

Publication restriction:

N/A

Judgment

Introduction

1. These reasons for judgment concern an application by the plaintiff, NorthWest Healthcare Australia RE Limited (NorthWest), for leave to amend its pleading by filing a Second Further Amended Statement of Claim in the form sent to my Associate (with leave) on 5 May 2023, and for leave to lead expert evidence in respect of three issues.

2. The application for leave to lead expert evidence is pressed only if NorthWest is granted leave to amend.

3. The defendants oppose both applications.

4. At the hearing of the applications on 4 May 2023, I was assisted by detailed written and oral submissions by senior and junior counsel appearing for NorthWest, the first defendant Australian Unity Funds Management Limited (AUFM), the second and third defendants Australian Unity Strategic Holdings Pty Ltd (AUSH) and Australian Unity Limited (Australian Unity), and the fourth, fifth and sixth defendants Dexus Funds Management Limited (Dexus Funds), Dexus Wholesale Management Limited (Dexus Wholesale) and Dexus Property Services Pty Ltd (Dexus Property). I have considered all of those submissions. For the sake of brevity, and without intending any disrespect to learned senior and junior counsel, I have incorporated references to those submissions into the substance of my reasons below, rather than endeavouring to summarise the whole of each party’s submissions.

5. For the reasons that follow, I have determined that leave should be granted in respect of three categories of the amendments proposed by NorthWest, but not in respect of the fourth category, and that leave should not be granted to NorthWest to lead the proposed expert evidence.

Application for leave to amend

Applicable principles

6. The principles to be applied in determining an application for leave to amend are well established.

7. Section 64 of the Civil Procedure Act 2005 (NSW) relevantly provides:

“(1)   At any stage of proceedings, the court may order—

(a)   that any document in the proceedings be amended, or

(b)   that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.”

8. Section 56 of that Act requires the discretion conferred by s 64(1) to be exercised in a manner that seeks to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings.

9. Section 64(2) requires amendments to be made if they are necessary for the purpose of determining “the real questions raised by or otherwise depending on the proceedings”, subject to the dictates of justice in s 58.

10. In Aon Risk Services Australia Ltd v Australian National University,[1] the High Court considered the meaning and application of rule 501 of the Court Procedures Rules of the Australian Capital Territory, which required all necessary amendments to be made for the purpose of “deciding the real issues in the proceedings”. Gummow, Hayne, Crennan, Kiefel and Bell JJ said [2]

“The words ‘the real issues in the proceeding’ in r 501(a) obviously refer to issues raised, perhaps unclearly, in the pleadings at the time of the application for leave to amend. The ‘real’ issues may also extend beyond the pleadings, as cases concerned with the purpose stated in the original Rules show. But, as is explained in these reasons, to be regarded as a real issue, and for amendment therefore to be necessary, the relevant dispute or controversy must exist at the time of the application. Amendments raising entirely new issues fall to be considered under the general discretion given by r 502(1), read with the objectives of r 21.”

1. (2009) 239 CLR 175; [2009] HCA 27.

2. Ibid at [71].

11. As Campbell JA observed in Rennie Golledge Pty Ltd v Ballard: [3]

    3. (2012) 82 NSWLR 231; [2012] NSWCA 376 at [103].

“… s 64(2) differs from the Australian Capital Territory’s r 501 in two
respects. The whole provision is expressed to be ‘subject to s 58’, and the
‘real questions’ concerning which an amendment must be permitted are not
only those ‘raised by’ the proceedings, but also those ‘otherwise depending
on’ the proceedings. The questions ‘raised by’ the proceedings are ones that
exist at the time of the application for amendment: Aon at [31], [71], [119]. It
is apparent from the facts in Aon that ‘at the time of the application’ is to be
understood in the sense of ‘before an issue arose about whether the amendment should be permitted’, not ‘on the very day when the judge is
considering whether to grant the amendment’ — for by the latter time there is
a live question about whether the amendment should be allowed, and it has
been raised by an application in the proceedings. The ‘real questions …
otherwise depending on the proceedings’ appear to be ones that are the
consequence of the questions that are raised by the proceedings.” 

12. Section 58 of the Civil Procedure Act provides:

“(1)    In deciding—

(a)    whether to make any order or direction for the management of proceedings, including—

(i)    any order for the amendment of a document, and

(ii)    any order granting an adjournment or stay of proceedings, and

(iii)   any other order of a procedural nature, and

(iv)   any direction under Division 2, and

(b)

   the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2)   For the purpose of determining what are the dictates of justice in a particular case, the court—

(a) must have regard to the provisions of sections 56 and 57, and

(b)   may have regard to the following matters to the extent to which it considers them relevant—

(i)   the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii)   the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii)   the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v)   the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi)   the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii)   such other matters as the court considers relevant in the circumstances of the case.”

The real questions raised by or depending on the proceedings

13. AUFM is the responsible entity of the Australian Unity Healthcare Property Trust (AUHPT) and a wholly owned subsidiary of Australian Unity.

14. The proceedings arise out of various proposals made by NorthWest during the period between 17 February and 15 June 2021 to acquire 100 per cent of the units in AUHPT. The proposed acquisition did not proceed. According to the Further Amended Statement of Claim filed on 7 April 2022 (FASOC), a unitholders’ meeting convened by NorthWest to take place on 1 July 2021 to consider and, if thought fit, approve the acquisition, was postponed and subsequently cancelled by order of this Court on 15 July 2021, in circumstances where sufficient proxy votes had been lodged by unitholders opposing a constitutional amendment integral to the acquisition proposal, that the amendment would not be passed at any unitholders meeting.

15. NorthWest’s principal cause of action is a claim for a declaration that AUFM acted in excess of its powers under the constitution of AUHPT and for an improper purpose not authorised by that constitution, and failed to give priority to the interests of unitholders over the interests of AUFM, AUSH or Australian Unity, by:

1. entering into a subscription agreement between AUFM and AUSH on 9 June 2021 (the AUSH Subscription Agreement) and issuing wholesale units in AUHPT to AUSH on 9 June 2021 pursuant to that subscription agreement (the AUSH Placement);

2. entering into a subscription agreement between AUFM and Dexus Wholesale on 9 June 2021 (the Dexus Subscription Agreement) and issuing wholesale units in AUHPT to Dexus Wholesale on 9 June 2021 pursuant to that subscription agreement (the Dexus Placement);

3. approving or authorising Australian Unity entering into a Letter Deed dated 9 June 2021 with Dexus Funds in respect of certain arrangements, the terms of which allegedly formed part of the commercial bargain pursuant to which the Dexus Placement was made (the Letter Deed); and

4. approving or authorising in about November 2021 Australian Unity entering into a Platform Agreement with Dexus Funds and a Development Cooperation Agreement with Dexus Property, which agreements were allegedly contemplated by or entered into pursuant to, or as a continuation of, the Letter Deed. The Platform Agreement and Development Cooperation Agreement are referred to as the 17 November Transactions.

16. It is the improper purpose question raised by that claim for declaratory relief that is relevant to the proposed amendments.

17. In paragraph 41 of the FASOC, NorthWest pleads the material facts on which it relies in relation to the AUSH Subscription Agreement and the AUSH Placement, and the Dexus Subscription Agreement, the Dexus Placement and the Letter Deed.

18. Paragraph 46 of the FASOC pleads that AUFM did not disclose certain aspects of the Dexus Placement and the Letter Deed when it announced the Dexus Placement to unitholders on 9 June 2021, including provisions of the Dexus Subscription Agreement and the Letter Deed that NorthWest alleges had the effect of treating Dexus Wholesale more favourably than other unitholders and entrenching the AU Group’s control over the management of AUHPT. The FASOC defines the AU Group as the group of companies of which Australian Unity is the holding company.

19. In paragraphs 62 to 65 of the FASOC, NorthWest pleads that AUSH and AUFM announced an offer on 22 June 2021, pursuant to which AUSH offered to buy units from unitholders at a price which was said to be the same as the price offered under NorthWest’s acquisition proposal (the 22 June Premium Cash Offer). NorthWest alleges that this procured that unitholders who may have wished to consider selling their units, including to NorthWest, would instead transfer to AUSH up to $80 million worth of units in AUHPT, which represented approximately 3 per cent of all issued units.

20. In paragraph 54(aaa)(ii) of the FASOC, NorthWest alleges that the effect of the AUSH Subscription Agreement, the AUSH Placement, the Dexus Subscription Agreement, the Dexus Placement and the Letter Deed (collectively, the 9 June Transactions), the 22 June Premium Cash Offer and the 17 November Transactions included that:

“investor returns were adversely affected, to the extent that the arrangements involved AUHPT receiving equity capital in advance of being able to expend it on identified developments and acquisitions”

21. In paragraph 56 of the FASOC, NorthWest alleges that:

“… AUFM’s interests in remaining as responsible entity of AUHPT for a fee (which interests were shared with the AU Group) and in entering into the 9 June Transactions and 17 November Transactions were in conflict with the interests of the general body of unitholders in:

(a)   engaging with any proposal by NorthWest or another third party bidder to acquire AUHPT units at a premium to value, whether made prior to 9 June 2021 or thereafter; and

(b)   not incurring any reduction in the value of their AUHPT units or any adverse affectation of unit returns as a result of the 9 June Transactions and 17 November Transactions.”

22. Item (iv) of the particulars to paragraph 56(b) of the FASOC repeats the pleaded allegation in paragraph 54(aaa)(ii) of the FASOC, namely:

“(iv)   The 9 June Transactions and the 17 November Transactions adversely affected investor returns, to the extent that they involved AUHPT receiving equity capital in advance of being able to expend it on identified developments and acquisitions.”

23. Contrary to a submission made on behalf of the Dexus defendants, I read the words “to the extent that” in paragraph 54(aaa)(ii) and item (ii) of the particulars to paragraph 56(b) of the FASOC as directed to the precise amount of the equity capital raised that could not be expended on identified developments and acquisitions at the time of the 9 June Transactions. That is to say, I do not read those words as meaning “if and to the extent that”.

24. In paragraph 82 of the FASOC, NorthWest pleads that:

“… in entering into or otherwise engaging in conduct that compromised approving, authorising, facilitating, enabling, promoting or consent to the 9 June Transactions, the 22 June Premium Cash Offer and the 17 November 2021 Transactions (June and November 2021 Conduct), AUFM:

(a)   acted for one or more of the following improper purposes, at least one of which was a substantial purpose of the June and November 2021 Conduct:

(i)   maintaining AUFM (or another entity within the AU Group) as responsible entity of AUHPT with an entitlement to receive fees in that capacity;

(ii)   amassing or retaining control of units in AUHPT within the AU Group, or entitles with which the AU Group had contractual arrangements limiting disposal of units and the exercise of voting power over units;

(iii)   diluting the proportion of units in AUHPT held by NorthWest;

(iv)   manipulating the voting power of the general body of unitholders; and

(v)   specifically preventing NorthWest or any other third party bidder from succeeding in any offer, whether made prior to 9 June 2021 or thereafter, to acquire all of the units of AUHPT (apart from those it already owned) or a controlling stake in AUHPT; and

(b)    would not have engaged in the June and November 2021 Conduct bur for one or more of the purposes referred to in sub-paragraph 82(a) above.

Particulars

(i)   Reliance in placed on the matters pleaded at paragraphs 12 to 75 above in full, including but not limited to the following:

…

(B)   the timing of the 9 June Transactions in relation to the timing of NorthWest’s proposals to acquire AUHPT, and the 17 November Transactions being ones that were generally contemplated by and/or entered into pursuant to and/or as a continuation of the Letter Deed;    

…

(ii)   AUFM did not publicly report any significant capital raising requirements for AUHPT in its audited financial reports for the financial year ended 30 June 2020, prepared on 28 September 2020, or otherwise prior to the 9 June Transactions.”

25. In paragraph 83 of the FASOC, NorthWest refers to a Deed Poll allegedly lodged by AUFM with ASIC on 9 June 2021 purporting to amend the constitution of AUHPT so as to authorise the responsible entity to issue wholesale units in the manner that occurred that day in the AUSH Placement and the Dexus Placement. NorthWest pleads that the purported amendment to the constitution was unauthorised, invalid and ineffective.

26. In paragraph 84 of the FASOC, NorthWest pleads that, by reason of the matters earlier pleaded (including in paragraphs 82 and 83 of the FASOC), the June and November 2021 Conduct was not authorised by the constitution of AUHPT, was not in the best interests of unitholders, and involved a failure by AUFM to prioritise the interests of unitholders over the interests of AUFM, AUSH or Australian Unity.

27. In paragraphs 85 and 88 of the FASOC, NorthWest alleges that, by engaging in the June and November 2021 Conduct, AUFM committed a breach of trust, contravened its general law duties owed to unitholders (including the duty to exercise its powers under the constitution of AUHPT for a proper purpose) and contravened s 601FC(1)(c) of the Corporations Act2001 (Cth).

28. In paragraphs 89 to 93A of the FASOC, NorthWest pleads that each of Australian Unity, AUSH, Dexus Funds, Dexus Wholesale and Dexus Property has accessorial liability for AUFM’s alleged breaches of duty as trustee and responsible entity because (relevantly) each of those defendants allegedly knew of AUFM’s improper purpose and breach of trust pleaded in paragraphs 82 to 88 of the FASOC.

29. As against Australian Unity and AUSH, the accessorial liability claim is founded on NorthWest’s pleaded allegations in paragraphs 71 to 75 of the FASOC that there was commonality of governance between AUFM, AUSH and Australian Unity, and that those three companies collectively negotiated and devised the terms of the AUSH Subscription Agreement, Dexus Subscription Agreement, Letter Deed, Platform Agreement and Development Cooperation Agreement or acted in concert to effect those agreements. That basis of the accessorial liability claim is pleaded in paragraphs 89 to 92 of the FASOC.

25. The basis of the accessorial liability claim against Dexus Wholesale and Dexus Funds, as pleaded in paragraphs 76 to 77A and 93 of the FASOC, may be summarised as follows:

1. as at 9 June 2021, Dexus Wholesale and Dexus Funds were allegedly aware of:

1. the terms of the constitution of AUHPT;

2. AUFM’s duties as responsible entity of AUHPT, including duties to act in the best interests of unitholders and to exercise its powers under the constitution for a proper purpose; and

3. the proposed effect of each of the 9 June Transactions;

2. with respect to the Dexus Subscription Agreement and Letter Deed:

1. Dexus Funds procured, directed, authorised, recommended, consented to or alternatively condoned the entry by Dexus Wholesale into the Dexus Subscription Agreement;

2. Dexus Wholesale procured, directed, authorised, recommended, consent to or alternatively condoned the entry by Dexus Funds into the Letter Deed; and

3. further or in the alternative, Dexus Wholesale and Dexus Funds acted in concert to effect those agreements;

3. at the time of execution of the Dexus Subscription Agreement and Letter Deed on 9 June 2021, Dexus Wholesale and Dexus Funds allegedly knew of AUFM’s alleged improper purpose and breach of trust (insofar as they pertain to the Dexus Subscription Agreement and Letter Deed);

4. with respect to the Platform Agreement and the Development Cooperation Agreement:

1. each of Dexus Funds, Dexus Wholesale and Dexus Property collectively negotiated and devised the terms of those agreements;

2. Dexus Wholesale procured, directed, authorised, recommended, consented to or alternatively condoned the entry by Dexus Funds into the Platform Agreement;

3. Dexus Funds and Dexus Wholesale procured, directed, authorised, recommended, consented to or alternatively condoned the entry by Dexus Property into the Development Cooperation Agreement;

4. further or in the alternative, Dexus Wholesale, Dexus Funds and Dexus Property acted in concert to effect those agreements; and

5. at the time of execution of the Platform Agreement and Development Cooperation Agreement on 17 November 2021, Dexus Wholesale and Dexus Funds allegedly knew of AUFM’s alleged improper purpose and breach of trust (insofar as they pertain to the Platform Agreement and Development Cooperation Agreement).

31. As senior counsel for the Dexus defendants submitted at the hearing, the allegation that Dexus Wholesale and Dexus Funds were aware of the proposed effect of each of the 9 June Transactions, plainly refers to the structural effect alleged in paragraph 46 of the FASOC. The FASOC does not plead any material facts capable of supporting an allegation that Dexus Wholesale and Dexus Funds had knowledge of the alleged adverse effect on investor returns pleaded in paragraph 54(aaa)(ii) and particularised in paragraph 56(b).

32. The basis of the accessorial liability claim against Dexus Property, as pleaded in paragraphs 77A and 93A of the FASOC, may be summarised as follows:

1. with respect to the Platform Agreement and the Development Cooperation Agreement:

1. each of Dexus Funds, Dexus Wholesale and Dexus Property collectively negotiated and devised the terms of those agreements;

2. Dexus Wholesale procured, directed, authorised, recommended, consented to or alternatively condoned the entry by Dexus Funds into the Platform Agreement;

3. Dexus Funds and Dexus Wholesale procured, directed, authorised, recommended, consented to or alternatively condoned the entry by Dexus Property into the Development Cooperation Agreement;

4. further or in the alternative, Dexus Wholesale, Dexus Funds and Dexus Property acted in concert to effect those agreements;

2. at the time of execution of the Development Cooperation Agreement on 17 November 2021, Dexus Property allegedly knew of AUFM’s alleged improper purpose and breach of trust (insofar as they pertain to the Development Cooperation Agreement).

33. In its Defence to the FASOC filed on 24 May 2022, AUFM admits entering into the 9 June Transactions and 17 November Transactions, adding that it relies on the full terms and effect of the relevant transaction documents.

34. In paragraph 41A of its Defence, AUFM pleads that the 9 June Transactions and the 22 June Premium Cash Offer were entered into for the purposes of:

“(a)   raising equity capital up to $320 million, including $200 million on terms representing a premium of approximately 16% to the then current net asset value per wholesale unit, to fund AUHPT’s pipeline of development projects;

(b)   introducing, in the form of the Dexus entities, a substantial cornerstone investor with relevant expertise to assist AUHPT to pursue the acquisition of and development of healthcare real estate assets;

(c)   providing existing members of AUHPT with an opportunity to participate in the capital raising activities and thereby increase their investment in AUHPT; and

(d)   provide investors desiring liquidity with an opportunity to withdraw some or all of their investment in AUHPT on terms representing a premium of approximately 16% to the then current net asset value per wholesale unit, at no cost to AUHPT,

in each case for the benefit of and in the best interests of all members of AUHPT.”

35. AUFM denies the whole of paragraph 54 of the FASOC, including the allegation that investor returns were adversely affected by the 9 June Transactions.

36. AUFM also denies the whole of paragraphs 56, 82 and 85 of the FASOC.

37. In its Reply filed on 3 June 2022, NorthWest denies paragraph 41A of AUFM’s Defence.

38. In their Defence to the FASOC filed on 24 May 2022, AUSH and Australian Unity deny the whole of paragraph 54 of the FASOC, including the allegation that investor returns were adversely affected by the 9 June Transactions.

39. AUSH and Australian Unity do not plead to, and make no admissions in relation to, paragraphs 56, 82 and 85 of the FASOC, as those paragraphs contain no allegations against them. They deny NorthWest’s allegations that they knew of AUFM’s alleged improper purpose.

40. In their Defence to the FASOC filed on 25 May 2022, the Dexus defendants either deny or do not admit the allegations in paragraph 54 of the FASOC, [4] and deny the allegations in paragraphs 56, 82 and 85 of the FASOC. The Dexus defendants also deny NorthWest’s allegations that they knew of AUFM’s alleged improper purpose.

    4. Paragraph 54 of the Defence states that the Dexus defendants “deny admit paragraph 54” of the FASOC. It was clear from the parties’ conduct of the hearing of the amendment application before me that the Dexus defendants did not intend this to be an admission, and that NorthWest has not taken it as an admission, of paragraph 54 of the FASOC: T45.37-46.4.

41. The improper purpose allegations are directed to the subjective purpose or purposes for which the directors of AUFM caused it to engage in the June and November 2021 Conduct, including entering into the 9 June Transactions. The directors’ evidence of their subjective intentions will be relevant, but not conclusive. In assessing that evidence, and deciding whether to accept or discount it, the Court will be entitled to have regard to evidence of the objective surrounding circumstances existing at the time of the relevant decisions “which genuinely throw light upon that question of the state of mind of the directors”. [5]

    5. Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 at 835; [1974] 1 NSWLR 68 at 77B (Lord Wilberforce, delivering the opinion of the Privy Council and citing Hindle v John Cotton Ltd (1919) 56 Sc LR 625 at 630-631); Advance Bank Australia Ltd v FAI Insurances Ltd (1987) 9 NSWLR 464 at 485 (Kirby P, as his Honour then was, with the agreement of Glass JA); see also Hancock v Rinehart (2015) 13 ASTLR 1; (2015) 106 ACSR 207; [2015] NSWSC 646 at [60]-[61] (Brereton J, as his Honour then was).

42. As submitted on behalf of NorthWest, it is plain from those parts of the FASOC and the defences referred to above that the real questions raised by the proceedings include whether the directors of AUFM acted for one or more of the alleged improper purposes in paragraph 82 of the FASOC, and that the objective surrounding circumstances relied upon by the parties as throwing light on the directors’ subjective intentions include:

1. AUHPT’s capital raising requirements, as publicly reported by AUFM, including in the audited financial reports for the financial year ended 30 June 2020, prepared on 28 September 2020; [6]

2. AUHPT’s “pipeline of development projects” for which it claims to have required equity capital as at June 2021; [7] and

3. the effect of the 9 June Transactions on returns for unitholders, to the extent that they involved AUHPT receiving equity capital in advance of being able to expend it on identified developments and acquisitions. [8]

   6. See paragraph 82(b)(ii) of the FASOC, extracted at [24] above.

   7. See paragraph 41A of AUFM’s Defence, extracted at [34] above.

   8. See paragraph 54(aaa)(ii) of the FASOC, referred to at [20]-[21] above.

43. If NorthWest establishes one or more of the alleged improper purposes, a further question will arise as to whether those improper purposes were causative in the sense that, but for those purposes, AUFM would not have exercised the power to issue wholesale units in AUHPT to AUSH and Dexus Wholesale and would not have entered into the other 9 June Transactions and the 17 November Transactions. [9]

    9. Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 at 294 (Mason, Deane and Dawson JJ).

The proposed amendments

44. The proposed amendments fall into four categories.

45. In the first category – proposed paragraphs 11A to 11F – NorthWest pleads certain alleged facts concerning AUHPT’s financial position and projected development pipeline in the period prior to the commencement of the NorthWest acquisition proposals in February 2021. The alleged facts include that:

1. as at 31 December 2020, AUHPT had net assets of $1.685 billion, drawn-down debt of $646 million and $206 million in undrawn debt; and

2. as at 31 December 2020, AUHPT had a projected development pipeline requiring indicative funding of approximately $450 million (subject to board approvals and other conditions precedent), at least $265 million of which was not predicted to be required until after approximately 31 December 2021 and at least $165 million of which was not predicted to be required until after approximately 30 June 2022;

3. as at 20 January 2021, AUFM was not planning to raise additional capital to fund AUHPT’s development pipeline until late 2021;

4. AUFM learned that NorthWest was likely to make a bid for AUHPT on or about 29 January 2021; and

5. the potential for AUHPT to make an equity placement was raised on or about 1 February 2021 at a discussion between AUFM and/or Australian Unity personnel concerning NorthWest’s anticipated bid.

46. The particulars to proposed paragraphs 11A to 11F identify the defendants’ discovered documents and lay evidence as the basis of those allegations.

47. In the second category – proposed paragraphs 46A to 46H – NorthWest pleads certain alleged facts relating to a meeting of the Board of AUFM on 8 June 2021 at which AUFM approved the entry into the 9 June Transactions. The alleged facts include the substance of forecasts tabled at that Board meeting, and other forecasts prepared by AUFM prior to that Board meeting.

48. In proposed paragraph 46D, NorthWest pleads that:

“From 8 June 2021 until at least August 2021, AUHPT did not have any need to raise equity capital, or, alternatively, AUHPT did not have any need to raise equity capital in the amount contemplated by the 9 June Transactions …”

49. Proposed sub-paragraphs (a) to (e) of paragraph 46D plead the alleged circumstances on which NorthWest relies in support of that allegation that AUHPT did not need to raise equity capital.

50. In proposed paragraphs 46E to 46H, NorthWest pleads that:

“46E.   As at 8 June 2021:

(a)    AUFM intended to apply the capital raised by the 9 June Transactions towards the reduction of the amount owing under one or more of its debt facilities, to the extent that and for as long as those funds were not needed to fund capital outlays such as redemptions, acquisitions and development costs;

(b)    the weighted average cost of AUHPT’s debt facilities was approximately 2.55% (including interest rate hedges);

(c)   for AUHPT, the cost of equity exceeded the cost of debt and was likely to continue to do so until at least 31 December 2022; and

(d)   having regard to the matters pleaded in subparagraphs (a) to (c) above, by using the proceeds from the amounts raised by the 9 June Transactions to reduce the value of its outstanding debt instead of to fund acquisition or development projects requiring capital in the immediate future and short to medium term, AUHPT would dilute the financial benefits available to unitholders and adversely affect the amounts available to distribute to them.

46F.   At the 8 June Board Meeting, forecasts were tabled that estimated that the effect of the 9 June Transactions, in comparison to the status quo (all other things being equal), would be as follows:

(a)   by the end of FY22, distributions to unitholders of AUHPT, per unit, would decrease by up to 6%, and by the conclusion of FY23, up to 2.4%; and

(b)    by the end of FY22 and FY23, the implied yield for unitholders of AUHPT would decrease in comparison to the status quo.

46G.    At the time of approving the entry into the 9 June Transactions, AUFM, by its directors and officers, knew of the matters pleaded in paragraphs 46A to 46F above.

46H.    In the premises described at paragraphs 46A to 46G, AUFM and its directors and officers proceeded to finalise and execute the 9 June Transactions on 9 June in order to:

(a)    put those agreements in place and to announce them publicly prior to the unitholder meeting convened by the plaintiff for 1 July 2021;

(b)   procure the effects set out in paragraphs 46 above and 47 to 55 below; and

(c)    act for one or more of the improper purposes set out in paragraph 82(a) below –

and not because there was any commercial need or justification for AUFM to finalise an equity raising by means of, or in the amount contemplated by, those transactions.”

51. The alleged facts pleaded in proposed paragraphs 46A to 46H are drawn from the defendants’ discovered documents and the affidavits of Mr Rohan Mead, Chairman of the Board of Directors of AUFM, and by Mr Mark Pratt, Executive General Manager – Australian Unity Real Estate Investment within Australian Unity, affirmed in December 2021 and served by AUFM.

52. For example, the allegations pleaded in proposed paragraph 46F concerning the alleged adverse effect of the 9 June Transactions on distributions to unitholders and implied yield are drawn directly from Appendix G to a memorandum endorsed by Mr Pratt and provided to the Board of AUFM on 6 June 2021 together with the agenda for the Board meeting to be held on 8 June 2021.

53. The third category of proposed amendments comprise the following changes to paragraphs 54, 56 and 82 of the FASOC that flow from proposed paragraphs 46A to 46H:

1. NorthWest proposes to insert in paragraphs 54 and 56 a reference to paragraphs 46A to 46H as particulars of the allegation pleaded in paragraph 54(aaa)(ii) of the FASOC (including where that allegation is repeated in the existing particulars to paragraph 56) that investor returns were adversely affected by the 9 June Transactions to the extent that they involved AUHPT receiving equity capital in advance of being able to expend it on identified developments and acquisitions; [10]

2. NorthWest proposes to amend its existing pleading of the fifth alleged improper purpose in paragraph 82(a) of the FASOC to read: [11]

“specifically preventing or hindering NorthWest or any other third party bidder from succeeding in any offer, whether made prior to 9 June 2021 or thereafter, to acquire all of the units of AUHPT (apart from those it already owned) or a controlling stake in AUHPT”

3. NorthWest proposes to add the following additional item to its existing particulars of the allegation in paragraph 82(b) of the FASOC that AUFM would not have engaged in the June and November 2021 Conduct but for one or more of the alleged improper purposes in paragraph 82(a): [12]

“(iii)   AUFM did not need to raise capital, or alternatively, the full amount of the capital raised under the 9 June Transactions to meet its projected capital outlays as at 9 June 2021, and caused detriment to unitholders by raising equity capital in excess of what was needed to meet projected capital outlays.”

10. See [20]-[22] above.

11. See [24] above.

12. See [24] above.

54. The fourth category of proposed amendments relates to paragraphs 76 and 93 of the FASOC and affects only the Dexus defendants.

55. The substance of the existing paragraph 76 of the FASOC is referred to at [30(1)] above. NorthWest proposes to amend paragraph 76 to read as follows:

“76.   As at 9 June 2021, and prior to the 9 June Transactions being effected, each of Dexus Wholesale and Dexus Funds were aware:

(a)    of the terms of the Trust Constitution;

(b)   that AUFM was subject to the duties and obligations pleaded at paragraphs 10 and 11 above; and

(c) of the proposed effect of each of the 9 June Transactions;

(d) that the likely or potential effect of the 9 June Transactions on returns to unitholders, in comparison to the status quo (all other things being equal) would be as follows;

(i)    by the end of FY22, distributions to unitholders of the AUHPT, per unit, would decrease by up to 6%, and by the conclusion of FY23, up to 2.4%; and

(ii)   by the end of FY22 and FY23, the implied yield for unitholders of AUHPT would decrease in comparison with the status quo; and

Particulars

…

(e)    the AUPHT did not have any need to raise equity capital in the amount contemplated by the 9 June Transactions, at the time of those transactions, in circumstances where:

(i)    Dexus were provided with a forecast by AUFM which forecast capital inflows and outflows for June 2021, FY22 and FY 23 and identified available debt headroom;

Particulars

…

(ii)    in respect of a proposed acquisition by AUHPT of an aged care portfolio, there was not sufficient certainty as to whether or when that proposed aged care acquisition would proceed to give rise to any immediate need to raise equity for that transaction as at 8 June 2021;

Particulars

…

(iii)   in respect of the development and acquisition pipeline projects (other than the proposed aged care transaction) identified as requiring funding of approximately $229 million during FY22, there was uncertainty as to whether a number of those projects would proceed, and as to whether any requirement to expend capital on those projects as forecast would be delayed.

Particulars

…”

56. The particulars to each of the proposed additional sub-paragraphs of paragraph 76, which have been omitted from the quotation above, refer to documents discovered by the Dexus defendants.

57. The substance of the existing paragraph 93 of the FASOC is referred to at [30(3)] and [30(5)] above. NorthWest proposes to amend paragraph 93 to include an additional sub-paragraph (aa) alleging that Dexus Wholesale and Dexus Funds knew the matters pleaded in paragraph 76 (as amended) when the Dexus Subscription Agreement and Letter Deed were executed on 9 June 2021 and when the Platform Agreement and Development Agreement were executed on 17 November 2021.

58. There is no proposed amendment to paragraph 93(a) of the FASOC, which pleads that, when the Dexus Subscription Agreement and Letter Deed, Platform Agreement and Development Corporation Agreement were executed, each of Dexus Wholesale and Dexus Funds:

“knew of the matters pleaded at 82 to 84 above insofar as they pertain to the Dexus Placement, Dexus Subscription Agreement, Letter Deed, Platform Agreement and Development Corporation Agreement”

59. However, the proposed new item (iii) to the particulars of paragraph 82(b) would expand the scope of the matters in paragraph 82 that are alleged to have been known to Dexus Wholesale and Dexus Funds to include that, as at 9 June 2021, AUFM did not need to raise capital (or, alternatively, did not need to raise the full amount of the capital raised by the 9 June Transactions) and that the capital raising caused detriment to AUHPT unitholders by raising capital in excess of what was needed to meet the projected capital outlays.

Consideration and determination: the first three categories

60. I accept NorthWest’s submission that the first three categories of the proposed amendments articulate in greater detail the improper purpose allegations already pleaded against AUFM, AUSH and Australian Unity in the FASOC, [13] and plead matters of detail concerning the objective circumstances referred to at [42] above that are relevant to determining the questions raised by the existing pleadings concerning AUFM’s actual purpose or purposes. [14] The provision of that greater detail provides even greater clarity for AUFM, AUSH and Australian Unity about the basis on which NorthWest will seek to establish at trial the central allegations pleaded in the FASOC.

    13. Proposed paragraphs 46G to 46H and the consequential proposed amendments to the particulars to paragraphs 54 and 56.

    14. Proposed paragraphs 11A to 11F and 46A to 46E, and proposed item (iii) of the particulars to paragraph 82.

61. I reject the submission made by AUFM, and adopted by AUSH and Australian Unity, that the proposed amendments seek to introduce an entirely new ground of attack on AUFM’s entry into the 9 June Transactions by challenging, for the first time, whether there was a commercial need or justification for the equity capital raising undertaken by those transactions. It is clear from paragraph 54(aaa)(ii) of the FASOC (repeated in item (iv) of the particulars to paragraph 56(b)) that NorthWest’s existing case includes an allegation that there was no commercial need or justification to raise any, or at least some, of the equity capital raised by the 9 June Transactions because the capital was not required for identified developments or acquisitions at that time. That is why investor returns are alleged to have been adversely affected by the 9 June Transactions. It is plain from paragraph (ii) of the particulars to paragraph 82(b) of NorthWest’s existing pleading that the alleged lack of public reporting by AUFM of any significant capital raising requirements prior to 9 June 2021 is to be relied on in support of the allegation that the 9 June Transactions raised capital beyond AUHPT’s commercial needs at the time, which will in turn be relied on as supporting a finding that the directors of AUFM had one or more of the alleged improper purposes in paragraph 82(a), and that those improper purposes were causative.

62. I also reject the submission made by AUFM, which was adopted by AUSH and Australian Unity, that the proposed amendments fail to properly articulate how or why the decision to enter into the 9 June Transactions was allegedly so flawed as to betray an improper purpose. In my opinion, that is tolerably clear from proposed paragraphs 46A to 46H. AUFM’s submissions about the alleged deficiencies in those paragraphs were, in truth, directed to AUFM’s contention that the case now articulated by NorthWest is a weak case, including because the same document that forecasts reduced distributions for unitholders and reduced yields following the 9 June Transactions shows an increased wholesale price for units following those transactions. [15] I express no view about the merits of the case, which is a matter for trial and not a reason to refuse leave to amend.

    15. See [52] above.

63. For those reasons, I consider that the first three categories of the proposed amendments are necessary amendments to be made for the purpose of determining the real questions raised by the proceedings.

64. I have determined that it is consistent with the dictates of justice to grant leave to amend in respect of those first three categories for the following reasons.

65. As I have already mentioned, the substance of those amendments is drawn from the documents discovered and evidence served by AUFM, AUSH and Australian Unity. The evidence of the solicitors acting for NorthWest, AUFM, AUSH and Australian Unity establishes that general discovery orders were made on 30 May 2022 and the defendants discovered between 18,000 and 20,000 documents at the end of August 2022. Mr James Clarke, the solicitor acting for NorthWest, has given evidence that disputes about redactions to approximately 1,800 of the defendants’ discovered documents were not determined until 15 December 2022 and that, even now, there are ongoing disputes about alleged deficiencies in the scope of the defendants’ discovery. In those circumstances, I do not consider that there was any delay on the part of NorthWest in making this application for leave to amend by interlocutory process filed on 31 March 2023 and I reject the submission that AUFM, AUSH or Australian Unity would suffer substantial prejudice if it were required to respond to the amendments at this stage of the proceedings.

66. I am not persuaded to the contrary by the submission made by senior counsel for AUFM and the evidence of AUFM’s solicitor, Ms Ruth Overington, to the effect that NorthWest had sufficient material from no later than August 2022 to have formulated the proposed amendments and made the application for leave to amend. First, NorthWest did not have any of the defendants’ discovered documents until the end of August 2022. The questions raised by the FASOC concerning AUHPT’s “pipeline of development projects” and any funding requirements for those developments as at 9 June 2021 are the kind of questions that were likely to have been the subject of ongoing, iterative discussion and analysis by AUFM management and directors. It was likely that a range of documents from different sources and/or created at different points in time might be relevant to the questions whether the 9 June Transactions involved AUHPT receiving equity capital in advance of being able to expend it on identified developments and acquisitions, and whether returns for unitholders were thereby adversely affected. It was reasonable for NorthWest to undertake a wholistic review of the discovered documents, and to revisit its assessment of the defendants’ evidence in light of those documents, before formulating any amendments and applying for leave to amend. It is not to the point that, having undertaken that exercise, it might now be said with the benefit of hindsight that NorthWest could have formulated substantially the same proposed amendments at an earlier point in time by piecing together material from the more limited range of documents then available, hoping that no additional material would emerge from discovery which might affect the substance or scope of the amendments.

67. Nor am I persuaded to the contrary by AUFM’s complaint that NorthWest declined to provide the substance of the amendments now proposed by way of particulars during the period between April and July 2022, before AUFM had discovered any documents. It is difficult to reconcile that complaint with the position taken by AUFM in February 2023 that it was not open to NorthWest to provide by way of particulars the matters that it now seeks to plead in the first three categories of the proposed amendments.

68. AUFM contends that, if the first three categories of the proposed amendments are allowed, this will require a mediation scheduled for 22 June 2023 to be postponed and the final hearing, which has been listed for three weeks commencing on 10 October 2023, to be vacated. That contention is based on Ms Overington’s evidence concerning the following steps that she contends will be required, apparently sequentially, if leave to amend is granted:

1. preparation of and filing of a defence in response to the proposed Second Further Amended Statement of Claim which, according to Ms Overington, would take approximately six weeks;

2. preparation and filing by NorthWest of any reply to any such defence;

3. preparation and filing of further lay evidence by AUFM, which Ms Overington estimates would take approximately eight weeks;

4. addressing any requests by NorthWest for additional discovery, which Ms Overington deposes would take additional time and involve significant cost; and

5. preparing and filing expert evidence responsive to NorthWest’s proposed expert evidence, if leave is granted to NorthWest to adduce that expert evidence, which Ms Overington deposes would require approximately eight weeks.

69. I do not accept that AUFM would require six weeks to file a defence responding to the first three categories of the proposed amendments, the substance of which is drawn from AUFM’s own evidence and documents. Moreover, there is no reason why AUFM should not be expected to be preparing any further lay evidence at the same time as preparing its defence.

70. Ms Overington’s estimate of eight weeks for the preparation of AUFM’s further evidence seems to me to be overly generous, given that any such evidence would be addressing matters and transactions that were documented by AUFM at the time, and having regard to the fact that many of the matters that Ms Overington says would need to be addressed in further evidence have already been canvassed in affidavits affirmed in December 2021 by Mr Rohan Mead, Chairman of the Board of Directors of AUFM, and by Mr Mark Pratt, Executive General Manager – Australian Unity Real Estate Investment within Australian Unity, as identified in the submissions made on behalf of NorthWest. Nevertheless, I am prepared to assume that the estimate is accurate for present purposes, on the basis that the work would be done concurrently with the preparation of a defence.

71. NorthWest’s existing reply to all defendants’ defences is five pages in length. There is no reason to expect that any reply to defences to the proposed Second Further Amended Cross-Claim would be materially longer or more complex. Even assuming that the defences or the defendants’ further lay evidence raises some new issues beyond what NorthWest is already appraised of from its review of the defendants’ existing pleadings, evidence and discovered documents, a period of up to three weeks should be sufficient to prepare and file any reply.

72. NorthWest does not seek any further discovery arising from the proposed amendments. The existing dispute about alleged deficiencies in the defendants’ discovery will need to be resolved. That dispute is not attributable to the first three categories of the proposed amendments, which do not expand the real questions raised by the proceedings for the reasons that I have already explained.

73. For reasons that I will come to shortly, there will be no grant of leave to NorthWest to lead its proposed expert evidence. There is therefore no need to factor in any time for any of the defendants to lead any responsive expert evidence.

74. Ms Overington’s evidence that the additional work would result in AUFM incurring additional legal costs of at least $750,000 does not rise above the level of bare assertion and therefore carries no weight, particularly having regard to the matters referred to at [70] and [72] above.

75. AUSH and Australian Unity did not adduce any evidence of further work that would be required on their part, or of any risk of vacation of the hearing dates, if the first three categories of the proposed amendments are allowed.

76. Mr Clarke has given evidence that NorthWest does not anticipate filing any further lay evidence if leave is granted in respect of the proposed amendments. On that basis, the consequence of allowing the first three categories would be that AUFM, AUSH and Australian Unity would require a total period of approximately eight weeks within which to prepare and serve their defences and any further lay evidence, and NorthWest would require a period of approximately three weeks thereafter to file and serve any reply. All of that work would therefore be expected to be completed by about early August, in sufficient time for the final hearing to commence on 10 October 2023 as currently listed. I therefore reject the submission that the hearing dates would need to be vacated if the first three categories of the proposed amendments are allowed.

77. I also reject the submission that the mediation on 22 June 2023 would need to be vacated. The parties to these proceedings are sophisticated commercial entities, represented by experienced solicitors and teams of senior and junior counsel. The conduct of mediations without pleadings being closed and without the totality of the evidence is undoubtedly within the range of their extensive experience. There is considerable force in NorthWest’s submission that mediation need not be postponed in the present case, because the first three categories of the proposed amendments articulate in greater detail issues that have “long been on the table”. I accept the possibility that one or more of the defendants might nevertheless form the view the mediation would have better prospects of success if deferred for some period (say, until late July, after all the defences have been filed and any further lay evidence of the defendants has been served). That possibility is no reason to refuse leave to amend in respect of the first three categories.

78. For all of the reasons above, an order will be made granting leave to NorthWest to amend in respect of the first three categories.

Consideration and determination: the fourth category

79. The final iteration of the proposed Second Further Amended Statement of Claim served by NorthWest on 5 May 2023 represents the fourth iteration of the fourth category of the proposed amendments, being the amendments affecting the Dexus defendants. [16]

    16. See [54]-[59] above.

80. As submitted on behalf of the Dexus defendants, these proposed amendments seek to introduce for the first time allegations that Dexus Wholesale and Dexus Funds were aware of AUFM’s allegedly improper purposes pleaded in paragraph 82 of the FASOC because they were aware at the time of the Dexus Placement on 9 June 2021 that AUFM did not need to raise capital. That allegation is proposed to be introduced by:

1. the insertion of paragraphs 76(d) and (e), which are then picked up by proposed paragraph 93(aa); and

2. the insertion of item (iii) into the particulars of paragraph 82(b), which is then picked up by the existing paragraph 93(a), because item (iii) pertains to the capital raised by the Dexus Placement as part of the whole of the 9 June Transactions.

81. It is convenient to repeat the text of item (iii) of the particulars to paragraph 82(b):

“(iii)   AUFM did not need to raise capital, or alternatively, the full amount of the capital raised under the 9 June Transactions to meet its projected capital outlays as at 9 June 2021, and caused detriment to unitholders by raising equity capital in excess of what was needed to meet projected capital outlays.”

82. Prior to the introduction of item (iii), the matters in paragraph 82 pertaining to the Dexus Placement and the Dexus Subscription Agreement, which were picked up by paragraph 93(a) as matters allegedly known to Dexus Wholesale and Dexus Funds, did not include that AUFM allegedly did not need to raise capital as at 9 June 2021 or that AUFM allegedly caused detriment to unitholders by raising that capital.

83. I accept the submissions made on behalf of Dexus Wholesale and Dexus Funds that the fourth category of proposed amendments are embarrassing, and fail to disclose a reasonable cause of action against them for accessorial liability based on their conduct in executing the Dexus Subscription Agreement and Letter Deed on 9 June 2021 and their alleged knowledge at that time that AUFM did not need to raise the capital to be raised by the Dexus Placement and that the Dexus Placement caused detriment to AUHPT unitholders by raising capital in excess of what was needed to meet projected capital outlays.

84. Proposed paragraphs 76(d), 76(e) and 93(aa) fail to plead material facts capable of supporting that allegation of knowledge.

85. Proposed paragraphs 76(d) and 93(aa) are directed to the Dexus parties’ alleged knowledge of the likely or potential effect of the 9 June Transactions as a whole, not knowledge of the likely or potential effect of the Dexus Placement component of the 9 June Transactions.

86. Proposed paragraphs 76(e) and 93(aa) are directed to the Dexus parties’ alleged knowledge that AUHPT “did not have any need to raise equity capital in the amount contemplated by the 9 June Transactions”, not the specific amount of capital to be raised by the Dexus Placement.

87. As the Dexus parties submitted, these pleading deficiencies are compounded by the fact that proposed paragraph 76(e)(i) merely refers to a forecast, without articulating the knowledge that Dexus Wholesale and Dexus Funds are alleged to have gleaned from that forecast. The substance of any knowledge allegedly gleaned from the forecast would be the logical starting point for understanding and responding to the alleged significance of the matters referred to in proposed paragraphs 76(e)(ii) and (iii).

88. For those reasons, there will be no grant of leave to amend in respect of the fourth category of the proposed amendments, and the grant of leave to amend in respect of the first three categories will be subject to NorthWest also making the following additional amendments:

1. amending paragraph 93(a) of the FASOC to read:

“(a)   knew of the matters pleaded at 82 to 84 above (save for the matters in paragraph 82(b)(iii)) insofar as they pertain to the Dexus Placement, Dexus Subscription Agreement, Letter Deed, Platform Agreement and Development Cooperation Agreement”

2. amending paragraph 93A(a) of the FASOC to read:

“knew of the matters pleaded at 82 to 84 above (save for the matters in paragraph 82(b)(iii)) insofar as they pertain to the Development Cooperation Agreement”

Application for leave to adduce expert evidence

89. I respectfully adopt Black J’s summary in NorthWest Healthcare Australia RE Limited v Australian Unity Funds Management Limited of the principles to be applied in determining an application under UCPR r 31.19 for directions permitting a party to adduce expert evidence at trial. [17]

    17. [2023] NSWSC 86 at [16]-[18].

90. The expert evidence that NorthWest seeks leave to lead pursuant to UCPR r 31.19 is financial modelling of AUHPT’s projected costs of equity and projected costs of debt, and projected monthly debt headroom, during the period 9 June 2021 to 31 December 2022. It is modelling that was not prepared by AUFM at the time of the 9 June Transactions, and so was not available to AUFM’s directors when they made their impugned decisions.

91. It was submitted on behalf of NorthWest that the proposed modelling would provide objective evidence as to the financial position of AUFM and AUHPT at the relevant time, and would therefore form part of the material that the Court would be entitled to take into account in deciding whether to accept or discount the AUFM directors’ evidence of their subjective intentions.

92. I respectfully consider that this submission misstates the nature of the proposed modelling. It seems to me that the modelling would provide opinion evidence about the future financial position of AUFM and AUHPT, in circumstances where no such opinions were available to the AUFM directors at the time of their decisions. I fail to see how expert evidence of that kind could “genuinely throw light upon that question of the state of mind of the directors” [18] and I accept AUFM’s primary submission that the proposed modelling would not be relevant, and would therefore not be admissible.

    18. See [41] above.

93. Even if I had taken the view that it could be argued at trial that the modelling was relevant and admissible, I would have accepted the AUFM’s secondary submission that the evidence is of “vanishingly slight utility” [19] and is not reasonably required to resolve the proceedings, consistently with the overriding purpose. For that reason, it would be inconsistent with the purpose underpinning r 31.19 to grant leave to NorthWest to adduce that expert evidence.

    19. As senior counsel for AUFM eloquently put it.

94. For those reasons, NorthWest’s application for leave to adduce the expert evidence referred to in prayer 3 of this interlocutory process will be dismissed.

Costs

95. Each of AUFM and the Dexus defendants sought an order that NorthWest pay its costs of the interlocutory process. Northwest, AUSH and Australian Utility did not address the question of costs, although it was open to them to do so. Nor did they indicate that they wished to be heard separately in relation to costs after the interlocutory process was determined.

96. As against the Dexus defendants, NorthWest has not succeeded in obtaining any of the relief sought in its interlocutory process. Moreover, as the Dexus defendants submitted, they were put to the cost of appearing at the hearing of the interlocutory process at a time when NorthWest was yet to formulate the final iteration of its proposed fourth category of amendments. There is no reason why costs should not follow the event and there will be an order that NorthWest pay the Dexus’ defendants costs of the interlocutory process.

97. As between NorthWest and the other defendants, each party has had a measure of success and failure. NorthWest has been successful in its application for leave to make the first three categories of the proposed amendments to its pleading, but has failed to obtain leave under UCPR r 31.19 to adduce the proposed expert evidence. NorthWest, AUFM, AUSH and Australian Unity each incurred the costs of adducing detailed evidence from its solicitor concerning the discovery process. The total volume of that evidence was approximately one lever arch folder of material. The submissions relating to NorthWest’s alleged delay in seeking leave to amend did not address that evidence save in relation to one or two specific documents. Senior counsel for each of those parties did not incorporate into their submissions the matters of detail with which their instructing solicitors’ evidence was preoccupied, even after I invited them to do so to the extent that it was relevant. The appropriate order in all the circumstances is that each of those parties pay its own costs of the interlocutory process.

Conclusion and orders

98. For the foregoing reasons, the orders and directions of the Court are as follows:

1. Order pursuant to s 64 of the Civil Procedure Act 2005 (NSW) that leave be granted to the plaintiff to amend its pleading by filing a Second Further Amended Statement of Claim substantially in the form of the document emailed to the Associate to Williams J on 5 May 2023, but excluding the amendments marked up in paragraphs 76 and 93(aa) of that document, and incorporating the amendments to paragraphs 93(a) and 93A(a) that are identified in paragraph [88] of these reasons for judgment published on 23 May 2023.

2. Order that the plaintiff is to pay any costs thrown away by the defendants as a result of the amendments.

3. Order that the interlocutory process filed by the plaintiff on 31 March 2023 is otherwise dismissed.

4. Order that the plaintiff is to pay the fourth, fifth and sixth defendants’ costs of and incidental to that interlocutory process on the ordinary basis, in such amount as may be agreed or assessed.

5. Order that each of the plaintiff and the first, second and third defendants is to pay its own costs of that interlocutory process.

6. Direct that the first, second and third defendants file and serve by 18 July 2023:

1. any defence to the Second Further Amended Statement of Claim; and

2. any lay evidence responsive to the amendments in the Second Further Amended Statement of Claim.

7. Direct that the plaintiff file and serve any reply to any defence to the Second Further Amended Statement of Claim by 9 August 2023.

8. Confirm that the proceedings are listed for final hearing commencing on 10 October 2023 with an estimated hearing time of 3 weeks.

9. Grant liberty to the parties to apply on three days’ notice, specifying the relief sought.

**********

Endnotes

Decision last updated: 23 May 2023