In the matter of Pulitano Investments Pty Ltd
[2019] VSC 178
•15 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
REDCREST CORPORATIONS LIST
S ECI 2017 00038
IN THE MATTER OF PULITANO INVESTMENTS PTY LTD (ACN 005 023 834)
BETWEEN:
| FILIPPO PULITANO | First Plaintiff |
| 4th PULITANO INCORPORATION PTY LTD | Second Plaintiff |
| - and - | |
| FRANCESCO PULITANO (and others according to the schedule) | Defendants |
AND BETWEEN:
| PULITANO INVESTMENTS PTY LTD (ACN 005 023 834) (AS TRUSTEE FOR THE PULITANO INVESTMENTS UNIT TRUST) (and others according to the schedule) | Plaintiffs by Counterclaim |
| - and - | |
| FILIPPO PULITANO | First Defendant by Counterclaim |
| 4th PULITANO INCORPORATION PTY LTD (ACN 005 216 179) | Second Defendant by |
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JUDGE: | Connock J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 March 2019 |
DATE OF RULING: | 15 March 2019 |
CASE MAY BE CITED AS: | In the matter of Pulitano Investments Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 178 |
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PRACTICE AND PROCEDURE – Application for leave to amend counterclaim – Rules 36.01 and 36.04(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Section 7 of the Civil Procedure Act 2010 (Vic) – New causes of action introduced but central factual allegations not materially changed – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | N Magee QC with C Carrigan and J Dodd | Thomson Geer |
| For the First to Sixth Defendants | S Rieschieck (solicitor) | Russell Kennedy |
| For the Seventh to Twenty-fourth Defendants | S Hay | Hall & Wilcox |
HIS HONOUR:
By summons filed 29 November 2018 the seventh to twenty-fourth defendants/plaintiffs by counterclaim sought leave pursuant to rules 36.01 and 36.04(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to file and serve an amended defence and counterclaim in the form comprising Exhibit “JPU-1” to the affidavit of Mr Jacob Uljans affirmed 29 November 2018. This was revised to the form comprising Exhibit “PCR-1” to the affidavit of Ms Pia Rossignuolo affirmed 14 March 2019, being a defence and revised proposed amended counterclaim dated 20 February 2019 (proposed amended counterclaim).
The application was supported by Mr Uljans’ affidavit and the further affidavit of Ms Rossignuolo. The seventh to twenty-fourth defendants also relied on an outline of submissions dated 29 November 2018 and matters raised in a letter dated 12 March 2019 from their solicitors to the plaintiffs’ solicitors.[1]
[1]Comprising Exhibit “PCR-2” to the affidavit of Ms Pia Rossignuolo affirmed 14 March 2019.
The plaintiffs oppose the application in part. Originally the grounds of opposition were embodied in the plaintiffs’ outline of submissions dated 10 December 2018 which responded to the original form of the proposed amended counterclaim. By email dated 8 March 2019 the plaintiffs’ solicitors informed the court that the plaintiffs continued to oppose the application and, in particular, paragraphs 44A to 57 (inclusive) of the proposed amended counterclaim, and that in so doing they relied on their submissions dated 10 December 2018. They stated that they did not oppose the amendments set out in paragraphs 58 to 86 (inclusive) of the proposed amended counterclaim. It was this opposition to which the seventh to twenty-fourth defendants’ solicitor’s letter of 12 March 2019 responded and in which it was asserted, amongst other things, that the opposition was misconceived.
The application falls to be considered in a context where the proceeding had been listed for trial late last year but where shortly before the scheduled date it became apparent that it was unlikely to be completed within the scheduled period and, in any event, it was necessary for the plaintiffs to revisit their claims and make an application to amend their pleadings to introduce additional allegations regarding alleged oppression and other matters. Consequently, the trial date was vacated and directions were made to facilitate the plaintiffs’ application for leave to amend their statement of claim. At that time it became apparent that other amendment applications may be forthcoming and directions were made on 16 November 2018 to facilitate the making of any such applications by other parties. The seventh to twenty-fourth defendants then foreshadowed an application to amend their counterclaim which, in substance, was described as being needed to articulate more clearly the legal bases upon which the then pleaded claims regarding alleged unauthorised withdrawals of the first plaintiff were made.
Since that time the plaintiffs have sought and obtained leave to file an amended statement of claim with substantive revisions, which has now occurred, and responsive pleadings have recently been filed. There remain a number of steps to be addressed and directions to be made before the matter will again be ready for trial. It is in this environment that the application before the court is now to be considered, noting also that the matter has not yet been refixed for trial and that, irrespective of the outcome of this application, there will be further steps in advance of trial involving, among other things, the filing of further evidence, agreeing court book contents, preparing further submissions and other matters.
The principles relating to the grant or refusal of leave to amend pleadings have been well rehearsed in many cases and they need not be referred to at great length. They were recently succinctly referred to by Elliott J in Cargill Australia Limited v Viterra Malt Pty Ltd (No 18) (Cargill Australia)[2] in the following terms:[3]
The principles relating to the granting or refusal of leave to amend pleadings are well established.[4] Rule 36.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) empowers the court to grant leave to any party to amend any document for the purpose of “determining the real question in controversy between the parties to any proceeding”. Leave may be granted at any stage of the proceeding.
In deciding whether to grant leave to a party to amend its pleadings, the court must consider whether the proposed amendments facilitate the identification of the real issues in dispute and the just resolution of the proceeding.[5]
The power to grant leave to a party to amend its pleading to raise an arguable issue is a discretionary power. There is no right or entitlement for a party to amend its pleading subject to the payment of costs referable to the amendment.[6] The nature and importance of the proposed amendments must be considered.[7] This factor must be weighed against case management considerations such as cost, delay and the potential for unfair prejudice to other parties to the proceeding, the court and other litigants that might arise if the proposed amendments are allowed.[8]
Further, in exercising the power to grant leave, the court may give any direction or impose any term or condition it thinks fit.[9]
[2][2018] VSC 772.
[3]At [31]–[34], footnotes included.
[4]The relevant principles have been set out previously in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 10) [2018] VSC 439, [16]–[18]. They are repeated here for convenience.
[5]AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 204–205 [69] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also ABL Nominees Pty Ltd v Mackenzie (No 2) [2014] VSCA 529, [17] (Derham AsJ).
[6]AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 212 [96], 213 [98]–[99], 217 [111].
[7]Ibid, 214 [102].
[8]Ibid, 213 [98]–[99], 214–215 [102], 217 [111]; Civil Procedure Act 2010 (Vic), s 7.
[9]Supreme Court Rules, r 1.14(1)(b).
As observed in Cargill Australia, a helpful summary was also set out in ABL Nominees Pty Ltd v MacKenzie (No 2)[10] as follows:[11]
[10][2014] VSC 529, footnotes included.
[11]Ibid at [17]–[22].
The power to amend in r 36.01 (1) of the Supreme Court (General Civil Procedure) Rules 2005 (Rules) authorises the court to order that a party have leave to amend any pleading for the purpose of determining the real question in controversy between the parties to any proceeding, correcting any defect or error or avoiding multiplicity of proceedings.
It is common ground that an amendment which is futile because it is obviously bad in law will not be allowed: Commonwealth v Verwayen.[12] Similarly, if a proposed pleading would be liable to be struck out if it had been contained in an original pleading, either because the pleading is bad in law or is defective as a pleading, then leave to file the proposed pleading will not be allowed: Horton v Jones (No.2);[13] Gimson v Victorian WorkCover Authority.[14] The court, on this type of application, will not engage in an examination of the merits of the case foreshadowed by the proposed amendment, but where that amendment introduces a patently hopeless issue for determination then its inclusion will be futile and that will be a significant, and probably decisive, matter in the exercise of the court’s discretion.[15]
[12](1990) 170 CLR 394, 456.
[13](1939) 39 SR NSW 305, 310.
[14](1995) 1 VR 209, 215.
[15]Matthews v SPI Electricity Pty Ltd (Ruling No 6) [2012] VSC 70, [33].
As J Forrest J observed in Matthews v SPI Electricity Pty Ltd (Ruling No 6),[16] having regard to the terms of the Civil Procedure Act 2010 (CPA), the test is best expressed in the words of s 63 of that Act: if the amendment has no real prospect of success at trial then that would be a highly relevant factor in the exercise of the discretion to refuse the application.[17]
[16][2012] VSC 70, [34].
[17]As to the test see Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 [29] per Warren CJ and Nettle JA (Neave JA agreeing).
In Namberry Craft Pty Ltd v Watson,[18] Vickery J summarised the relevant factors to be considered, as a result of the decision in AON Risk Services Australia v Australian National University,[19] as follows:
[18][2011] VSC 136.
[19](2009) 239 CLR 175.
[T]here are to be limits placed upon re-pleading. The High Court in AON Risk Services Australia referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading. The High Court made reference to the following factors:
(a) Whether there will be substantial delay caused by the amendment;
(b) The extent of wasted costs that will be incurred;
(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;
(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;
(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.[20]
This list of factors is not exhaustive. It is made against the background of the earlier decision of the High Court in Queensland v JL Holdings Pty Ltd,[21] and the authorities that preceded it, including the famous case of Cropper v Smith,[22] where the liberal approach to the amendment of pleadings finds its lead in the dissenting judgment of Bowen LJ.
On the other hand, pleadings are not an end in themselves. They are a means of ensuring that real issues of controversy are raised for determination in a way that is procedurally fair, both to a plaintiff and a defendant. This allows claims and defences to be clearly articulated, granting parties an opportunity to present their case properly prepared, on clear notice of allegations and defences raised in the proceedings. On this basis, the authorities clearly establish that, absent extraordinary circumstances, leave to amend will be granted.[23]
[20]Ibid [38]. Equuscorp Pty Ltd and Sintoff Pty Ltd v Acehand Pty Ltd & Ors [2010] VSC 89, [19].
[21](1997) 189 CLR 146.
[22](1884) 26 Ch D 700.
[23]ACN 074 971 109 v The National Mutual Life Association of Australasia Ltd [2010] VSC 186, [28].
In the present context I am also mindful of the observations of Higgins J in Wicks v Bennett (Wicks)[24] and the observations of Hansen J in Farrow Finance Company Pty Ltd (in liq) v Farrow Properties Pty Ltd (in liq) (Farrow Finance):[25]
[24](1921) 30 CLR 80, 100.
[25](1999) 1 VR 584 [178].
To these matters, all of which are true, the plaintiff added that it was entitled to and the court should grant such relief as was appropriate on the facts found and conclusions reached in my judgment, even if the full terms or extent of that relief had not been expressly claimed. In support of this submission counsel relied on Wicks v Bennett (1921) 30 C.L.R. 80 at 100 per Higgins J.; Rawson v Hobbs (1961) 107 C.L.R. 466 at 485 per Dixon C.J.; T.M. Burke Estates Pty. Ltd. v P.J. Constructions (Vic.) Pty. Ltd. [1991] 1 V.R. 610 at 617. It is clear on these authorities that the absence of a specific claim for relief does not mean that the court should not grant that relief. In Rawson, Dixon C.J. said at 485:
The pleadings contain a sufficient statement of the facts though the conception of the causes of action or basis of relief may be open to criticism. The Court is not confined in granting relief to that which plaintiffs have specified and in the situation which the forgoing account of the case describes the appropriate relief appears to be …
In the earlier case of Wicks, Higgins J. said at 100:
It is not too much to say that it is for a plaintiff to state and to prove the facts which constitute his grievance, and it is for the Court, having found that there is that grievance, to find the appropriate remedy and to give it. This principle is at the very root of the administration of justice.
The central or ‘core’ factual allegations underlying the relevant claims in the existing counterclaim relate to alleged unauthorised withdrawals of money from company accounts by the first plaintiff as director for the benefit of himself or others. This is plainly apparent from the face of the existing counterclaim. For example, in the section of the existing counterclaim headed ‘Unauthorised Withdrawals’, it is alleged that the first plaintiff ‘caused’ a series of withdrawals of funds from bank accounts of certain defendant companies ‘… which withdrawals were not authorised by those entities or their respective boards of directors’.[26] These allegations remain at the heart of the proposed amendments in question and are reproduced essentially without alteration in paragraph 44 of the proposed amended counterclaim. The definition ‘Unauthorised Withdrawals’ is also retained.
[26]See, generally, paragraphs 33 to 38 of the existing counterclaim, noting also the allegations and admissions in paragraph 24 of the defence regarding the first plaintiff’s role as a director of relevant entities.
Briefly, in support of the application, and through their written and oral submissions, the seventh to twenty-fourth defendants submitted, in substance, that:
(a) The primary claim is already advanced in the existing counterclaim, being a claim for repayment of the total sum of $1,689,000 alleged to have been transferred by the first plaintiff from bank accounts of the seventh defendant and the fourteenth defendant for his own benefit or for the benefit of the second plaintiff during 2011 and 2013 by way of five funds transfers.
(b) The plaintiffs have made concessions regarding the making of the transfers and other matters.
(c) The purpose of the amendments was not to seek to raise new allegations of material fact, but to seek more expansively to articulate the legal bases for the claims to relief in connection with the alleged unauthorised withdrawals and more appropriately reflect the serious nature of the alleged withdrawals given the first plaintiff’s role as a director and fiduciary.
(d) The claims raised are plainly arguable and the matters raised in opposition are matters to be raised by way of defence ultimately for determination by the trial judge.[27]
(e) It is the first plaintiff’s conduct in wrongfully misappropriating substantial moneys from the companies in disregard of his fiduciary and statutory duties that is in issue with respect to a number of the issues in the counterclaims in the proceeding.
(f) There is no sound basis for contending that the claims as pleaded are hopeless or so obviously futile that they would be struck out if they appeared in the original pleading.
[27]Reliance was also placed in part on the observations of the High Court in Commonwealth of Australia v Verwayen (1990) 170 CLR 394, 456.
During oral submissions the seventh to twenty-fourth defendants emphasised that the ‘core’ factual allegations remained at the heart of the proposed amendments and sought to highlight their contention that the matters raised by the plaintiffs are more properly matters for defence, but should not prevent the amendment. It was also submitted that the amounts claimed in the prayer for relief in the existing counterclaim are not simply a reflection of account balances as they stand in company loan accounts, thereby indicating, so it was submitted, that the claims as currently pleaded were not just debt claims. Attention was also drawn to paragraphs 8 and 10 of the plaintiffs’ written submissions from which it was said that so much was apparent to the plaintiffs.
It was further submitted that the issue of whether or not the withdrawals were done with the knowledge of the other directors of the companies was already an issue and was addressed specifically in item 14 of the agreed list of issues and also expressly deposed to by the first plaintiff in paragraph 6 of his affidavit sworn 9 November 2018. It was further submitted that, in relation to competing contentions regarding loan accounts, there were differences of position between the parties and, in any event, to the extent that loan account issues were sought to be raised they were matters for defence.
The plaintiffs do not oppose the amendments embodied in paragraphs 58 to 86 (inclusive) of the proposed amended counterclaim, but do oppose paragraphs 44A to paragraph 57 (inclusive). Through their written and oral submissions they submitted, in substance, that:
(a) The proposed amendments seek additional remedies based on causes of action not previously raised, being:
(i) Equitable compensation, account of profits and equitable interest based on alleged breaches of fiduciary duties by the first plaintiff in his capacity as a director.
(ii) Equitable compensation, account of profits and equitable interest based on alleged breaches of fiduciary duties by the first plaintiff in his capacity as agent.
(iii) Restitution from the first plaintiff on the basis of money had and received.
(iv)Equitable compensation on account of profits based on alleged knowing receipt by the second plaintiff.
(b) Because the withdrawals had been treated as debit transactions in the loan accounts over a period, the relevant companies have either elected to treat them that way or waived their right to contend otherwise. Further, this conduct was said to be relevant to the exercise of discretion in any event.
(c) The treatment of the withdrawals as debit transactions in loan accounts by the relevant companies means that fully informed consent was given to the withdrawals by the companies and therefore they were ratified.
(d) Seeking restitution is inconsistent with the alleged decision to treat the transfers as debit transactions in the loan accounts.
(e) With respect to transfers that occurred in 2011, no loss was suffered. Further, the limitation period in s 1317K of the Corporations Act 2001 (Cth) applies by analogy to preclude the claims for breach of fiduciary duty by the first plaintiff as a director because they are brought more than six years after the relevant conduct occurred.
(f) Because the claims against the first defendant for breach of fiduciary duty for withdrawal of the relevant funds are untenable, the seventh to twenty-fourth defendants should not be permitted to introduce a claim against the second plaintiff based on knowing receipt (the Barnes v Addy claim).
(g) The new claims have no real prospects of success and would require further pleadings, evidence and argument on ‘hopeless’ causes of action thereby wasting the parties’ time.
During oral submissions the plaintiffs made reference to the background to the proceeding and numerous factual matters, although it was apparent from the submissions of each of the parties that a number of these matters were contentious. For present purposes they need not be detailed further in these reasons. The plaintiffs did submit that they did not contend that the other directors had knowledge of the transfers, although this appeared to be inconsistent with the agreed list of issues and the first plaintiff’s affidavit sworn 9 November 2018.[28]
[28]At paragraph 6.
In oral submissions the plaintiffs again placed emphasis on the subsequent treatment of the withdrawals in loan accounts and how it was said they have been dealt with in relevant accounts in connection with a later transaction said to involve an equity for debt swap that involved many of the parties. As the oral submissions revealed, the parties were not at one regarding these factual matters even though there appeared to be some common ground.
In the present circumstances and having regard to the material relied on, the applicable principles referred to, and the submissions made in writing and orally, for the reasons that follow I have concluded that it is appropriate to grant the seventh to twenty-fourth defendants leave to amend their counterclaim substantially in the form of the proposed amended counterclaim.
First, a review of the proposed amended counterclaim reveals that it does articulate more clearly the claims brought, the relief sought, and the asserted legal basis for the claims. [29] Consequently, allowing the amendments will facilitate the identification and determination of the real questions in controversy between the parties. It will also facilitate the just resolution of the proceeding.
[29]As was recognised by the seventh to twenty-fourth defendants, there were inadequacies with the previous form of the counterclaim.
Second, the matter has not been fixed for trial. Whether or not the amendments are permitted, additional steps are required before the matter will be ready for trial, as appeared to be common ground between the parties. In part, this follows from the amendments embodied in the amended statement of claim filed 17 December 2018.
Third, having regard to the nature of the proceeding, its procedural history, the number of factual and legal issues raised, and the additional steps to be taken consequent upon the plaintiffs’ amendments to their statement of claim, any issue of further delay or additional steps does not outweigh the other factors and considerations referred to above and below. It may also be noted that no evidence regarding particular material prejudice was sought to be advanced. Further, the proceeding is in a judge managed list and the court is in a position to manage any issues which might arise between the parties.
Fourth, I accept that many of the matters raised by the plaintiffs in opposition to the application are matters more properly to be considered in the context of their response or defence. The granting of leave will not prevent any of the matters raised from being raised if they are otherwise matters properly the subject of responsive pleadings, evidence or submissions. Further, if matters associated with the company accounts provide assistance to the plaintiffs in connection with defences they wish to raise, whether as to matters of breach, payment, loss or other aspects, the plaintiffs will have the opportunity to bring these matters forward.
Fifth, in substance the factual allegations at the heart of the proposed amendments remain the central factual allegations made in the existing counterclaim regarding the unauthorised withdrawals.[30] Consequently, there is some force in the submission of the seventh to twenty-fourth defendants that the amendments do not seek to raise substantial new allegations of material fact but, rather, more expansively articulate the legal bases of the relief to be claimed. However, there is a level of overstatement embedded in this submission as it is clear that new causes of action based on these central facts are introduced. The position remains, however, that the central factual allegations upon which the causes of action are based have not materially changed.
[30]See paragraphs 33 to 38 of the existing counterclaim and the allegations and admissions regarding the position of the first plaintiff as a director in paragraph 24 of the existing defence.
Sixth, although it was submitted that the proposed amendments introduce a restitution claim for the first time, I do not accept that submission. In paragraph 38 of the existing counterclaim it is already alleged that the first plaintiff and, further or alternatively, the second plaintiff, is liable to make restitution. It may also be observed that in the plaintiffs’ existing reply and defence to counterclaim, the plaintiffs simply deny this allegation and do not positively plead that restitution has been made in some way connected with the accounting treatment of the withdrawals, the accounts, or the debt/equity swap transaction referred to during the course of submissions.[31]
[31]As appeared to be suggested during the plaintiffs’ oral submissions. See also paragraph 9 of the plaintiffs’ reply and defence to counterclaim dated 17 July 2017.
Seventh, insofar as the application is resisted on the basis that alternative relief is claimed in respect of currently pleaded facts, the observations in Wicks and in Farrow Finance referred to above militate in favour of the grant of leave. That said, even if this aspect is put to one side, it would not alter the conclusions reached regarding the grant of leave.
Eighth, on an application of this kind in the circumstances before me, it is neither desirable nor appropriate to seek to analyse and determine the various factual and legal issues involved in the plaintiffs’ contentions regarding matters such as waiver, election, ratification, limitation of actions (whether in equity by analogy or otherwise), loss and damage or the other issues raised in the submissions. These will ultimately be matters for trial and involve consideration of various factual and legal issues and contentions that are not appropriate to address further at this point.
Ninth, although it was asserted that the proposed causes of action can be seen to be ‘hopeless’, that submission was based upon it being accepted and determined that there was merit to the various defence related matters referred to by the plaintiffs in their submissions. As noted above, consideration of the merits of these matters is for another day. It is sufficient to say that on the basis of the proposed pleaded allegations the claims are arguable and not hopeless or futile.
Tenth, considerations of additional steps or possible additional delay or other case management considerations do not, in the circumstances of this case, weigh heavily in the balance so as to justify the refusal of the grant of leave. I refer to my earlier observations regarding the context in which the application falls to be considered and note also the procedural history, the nature and scale of the litigation, and the desirability of resolving all issues. As I have mentioned, the matter has not yet been set down for trial and appropriate directions will be made to provide an opportunity for the plaintiffs to address any new allegations by way of pleadings, evidence and submissions. Further, as appears to have been recognised by the seventh to twenty-fourth defendants, there were inadequacies with the previous form of the counterclaim.
Eleventh, recognising that it appears to be common ground that the first plaintiff was a director of the relevant companies at relevant times, that it does not appear to be in dispute that the transfers were made, and that it is alleged that the transfers were unauthorised, I do not accept the submission that, as pleaded, the Barnes v Addy claim against the second plaintiff can be described as untenable. Further, insofar as that submission was based upon it being accepted as determined that the pleaded claims against the first plaintiff were ‘hopeless’ or bound to fail, for the reasons referred to above that premise has not been accepted on this application.
Finally, insofar as the plaintiffs opposed the inclusion of paragraphs 50 to 57 of the proposed amended counterclaim, I observe that those paragraphs are in the same terms as paragraphs 39 to 46 of the existing counterclaim – collectively concerning claims against the first plaintiff regarding the alleged possession of three vehicles, being a bobcat, a truck and an ageing BMW motor vehicle. The only amendments that appear in these paragraphs seem to be changed paragraph numbers. Even if leave to amend were not to be granted, or the application was to be withdrawn, these paragraphs would remain in the existing counterclaim and I do not accept that the plaintiffs have demonstrated a sound basis for rejecting these consequential amendments.[32]
[32]It may have been the case that including a reference to these paragraphs by the plaintiffs was a small oversight in the drafting of the submissions as no particular oral submissions were directed towards this issue during the course of the hearing. In any event the point made in paragraph 28 above remains.
In the circumstances it is appropriate to grant leave to the seventh to twenty-fourth defendants to amend their defence and counterclaim substantially in the form of the defence and revised proposed counterclaim comprising Exhibit “PCR1” to the affidavit of Ms Rossignuolo affirmed 14 March 2019. I will hear the parties further regarding proposed orders, costs and the directions for the future conduct of the proceeding.[33]
[33]I add that towards the end of the plaintiffs’ oral submissions it was suggested from the Bar table that if leave to amend was to be granted then the counterclaim ought to be heard separately. There was no application made or evidence adduced in relation to this matter, and the other parties were not on notice of it, and the matter was not addressed further.
SCHEDULE OF PARTIES
S ECI 2017 00038
BETWEEN:
FILIPPO PULITANO First Plaintiff 4th PULITANO INCORPORATION PTY LTD
(ACN 005 216 179)Second Plaintiff - and - FRANCESCO PULITANO First Defendant COSIMO PULITANO Second Defendant GIUSEPPE PULITANO Third Defendant 1st PULITANO INCORPORATION PTY LTD
(ACN 005 216 142)Fourth Defendant 2nd PULITANO INCORPORATION PTY LTD
(ACN 005 216 151)Fifth Defendant 3rd PULITANO PTY LTD (ACN 005 216 160) Sixth Defendant PULITANO INVESTMENTS PTY LTD (ACN 005 023 834) (AS TRUSTEE FOR THE PULITANO INVESTMENTS UNIT TRUST) Seventh Defendant NORBUS NOMINEES PROPRIETARY LIMITED
(ACN 005 622 980) (AS TRUSTEE FOR THE MULTIPUL UNIT TRUST)Eighth Defendant KYABRAM STREET PROPERTY PTY LTD
(ACN 119 530 693) (AS TRUSTEE FOR THE KYABRAM STREET PROPERTY TRUST)Ninth Defendant SANDHURST WAY PTY LTD (ACN 007 336 647)
(AS TRUSTEE FOR THE SANDHURST WAY UNIT TRUST)Tenth Defendant A.C.T. COACHES PTY LTD (ACN 006 753 751) Eleventh Defendant MANSFIELD-MT. BULLER BUS LINES PTY LTD
(ACN 062 477 856) (AS TRUSTEE FOR THE MANSFIELD UNIT TRUST)Twelfth Defendant MIRIMBAH SKI CENTRE PTY LTD (ACN 063 668 968) Thirteenth Defendant MORBANO PTY LTD (ACN 005 454 768) (AS TRUSTEE FOR THE DOMANTO UNIT TRUST AND AS TRUSTEE FOR THE MT LINDESAY HIGHWAY PROPERTY UNIT TRUST) Fourteenth Defendant BUS QUEENSLAND (LOCKYER VALLEY) PTY LTD (ACN 140 535 888) Fifteenth Defendant BUS QUEENSLAND (BOWEN BASIN) PTY LTD
(ACN 152 556 422)Sixteenth Defendant BUS QUEENSLAND (4X4) PTY LTD (ACN 152 556 360) Seventeenth Defendant COACH QUEENSLAND PTY LTD (ACN 135 579 403) Eighteenth Defendant CRANBOURNE TRANSIT PTY LTD (ACN 004 824 917) Nineteenth Defendant TOOWOOMBA TRANSIT PTY LTD (ACN 135 249 062) Twentieth Defendant BUS QUEENSLAND PTY LTD (ACN 010 516 757) Twenty-first Defendant WESTSIDE BUS CO PTY LTD (ACN 083 497 312)
(AS TRUSTEE FOR THE WESTSIDE UNIT TRUST)Twenty-second
DefendantPARK RIDGE ADMIN PTY LTD (ACN 143 834 520)
(AS TRUSTEE FOR THE PARK RIDGE ADMIN UNIT TRUST)Twenty-third Defendant TOOWOOMBA ADMIN PTY LTD (ACN 143 834 539)
(AS TRUSTEE FOR THE TOOWOOMBA ADMIN UNIT TRUST)Twenty-fourth
DefendantAND BETWEEN:
PULITANO INVESTMENTS PTY LTD (ACN 005 023 834) (AS TRUSTEE FOR THE PULITANO INVESTMENTS UNIT TRUST) First Plaintiff by
CounterclaimMORBANO PTY LTD (ACN 005 454 768) (AS TRUSTEE FOR THE DOMANTO UNIT TRUST AND AS TRUSTEE FOR THE MT LINDESAY HIGHWAY PROPERTY UNIT TRUST) Second Plaintiff by
CounterclaimBUS QUEENSLAND PTY LTD (ACN 010 516 757) Third Plaintiff by
CounterclaimWESTSIDE BUS CO PTY LTD (ACN 083 497 312) (AS TRUSTEE FOR THE WESTSIDE UNIT TRUST) Fourth Plaintiff by
Counterclaim- and - FILIPPO PULITANO First Defendant by
Counterclaim4th PULITANO INCORPORATION PTY LTD (ACN 005 216 179) Second Defendant by
Counterclaim
7
2
0