In the matter of Texxcon Pty Ltd
[2012] VSC 50
•21 February 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
CORPORATIONS LIST
No. 0240 of 2012
IN THE MATTER of TEXXCON PTY LTD
| TEXXCON PTY LTD | Plaintiff |
| v | |
| NOMINEXX PTY LTD | Defendant |
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JUDGE: | Davies J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2012 | |
DATE OF JUDGMENT: | 21 February 2012 | |
CASE MAY BE CITED AS: | In the matter of Texxcon Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 50 | |
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CORPORATIONS — Statutory derivative action — Requirements of s 237(2) Corporations Act 2001 (Cth) — Criteria for grant of leave satisfied — Corporations Act 2001 (Cth), s 237.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | JK Burnside Q.C. with ND Hopkins | Clayton Utz |
| For the First, Second, Third, Sixth and Seventh Defendants (in proceeding number S CI 2010 06430) | RM Garratt Q.C. with CE Shaw | Logie-Smith Lanyon |
| For the Fourth and Fifth Defendants (in proceeding number S CI 2010 06430) | MH O’Bryan S.C. with MP Costello | Arnold Bloch Leibler |
HER HONOUR:
Introduction
Nominexx Pty Ltd (“Nominexx”) is the corporate vehicle for a joint venture between Texxcon Pty Ltd (“Texxcon”) and Austexx Constructions No. 2 (“Austexx Constructions”), a wholly owned subsidiary of Austexx Corporation Pty Ltd (“Austexx Corporation”) and a member of the Austexx group of companies. Texxcon and Austexx Constructions are equally represented on the Nominexx board and each company owns 50% of the shares in Nominexx. In proceeding number S CI 2010 06430 (“the main proceeding”) Texxcon and Nominexx are suing Austexx Corporation and two other Austexx group companies as well as directors of those companies for loss and damage for alleged misrepresentations inducing Nominexx to lend $14m of joint venture funds to Austexx Corporation to enable the companies in the Austexx group to meet progress claims due on the construction of a development at South Wharf in Melbourne (“the misrepresentation claims”). The suit against the directors, Messrs Wieland, Goldberger and Porz, is based on claims of accessorial liability. Messrs Wieland, Goldberger and Porz are also directors of Nominexx and the claims made by Nominexx in the main proceeding are brought by Texxcon on behalf of Nominexx under s 237 of the Corporations Act 2001 (Cth) (“the Act”).[1] Texxcon has applied to the Court for a further order under s 237 of the Act giving it leave to sue Messrs Wieland, Goldberger and Porz on behalf of Nominexx for breaches of directors’ duties.
[1]Texxcon Pty Ltd v Austexx Corporation Pty Ltd & Ors [2011] VSC 203
Requirements for leave
The Court must grant the application for leave, if all of the five criteria in s 237(2) of the Act are satisfied.[2] Section 237(2) of the Act provides as follows:
[2]Goozee & Anor v Graphic World Group Holdings Pty Ltd& Ors (2002) 42 ACSR 534 at [27] (Barrett J).
(2) The Court must grant the application if it is satisfied that :
(a)it is probable that the company will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them; and
(b)the applicant is acting in good faith; and
(c)it is in the best interests of the company that the applicant be granted leave; and
(d)if the applicant is applying for leave to bring proceedings – there is a serious question to be tried; and
(e)either:
(i)at least 14 days before making the application, the applicant gave written notice to the company of the intention to apply for leave and of the reasons for applying; or
(ii)it is appropriate to grant leave even though subparagraph (i) is not satisfied.
Texxcon has the burden of satisfying the Court on the balance of probabilities that each criterion is satisfied.[3]
[3]Swansson v R A Pratt Properties Pty Ltd & Anor (2002) 42 ACSR 313, 318 [24] (Palmer J).
Issues in Dispute
Mr Porz has opposed the grant of leave, contending that the proposed pleading against him does not raise a serious question to be tried, that there is no sufficient evidence that Texxcon is acting in good faith in seeking to bring the derivative suit and that there is no satisfactory evidence that the proceeding is in the best interests of Nominexx. Mr Wieland and Goldberger neither consented to, nor opposed, the grant of leave although they supported the submissions made on behalf of Mr Porz.
Relevant Background Material
A factual context is required for the proposed new claim against Messrs Wieland, Porz and Goldberger for breaches of directors’ duties in order to appreciate how the claim is put and why it was submitted on behalf of Mr Porz that there is no serious question to be tried. This factual context is drawn from the pleadings in the main proceeding, the evidence in support of this application and the earlier application under s 237 of the Act, and from the judgment of this Court in Ausmezz Pty Ltd & Anor v David Goldberger & Ors[4] decided by Pagone J.
[4][2011] VSC 640.
In September 2008, Ausmezz Pty Ltd (“Ausmezz”) and Mirvac Capital Investments Pty Ltd (“Mirvac”) (collectively the “Financiers”) gave a facility to the Austexx group (“the Borrowers”) to finance a development project at South Wharf (“the Mirvac facility”), which Messrs Wieland, Porz and Goldberger (and one other) guaranteed.[5] A total commitment of $60m was made available under the Mirvac facility, of which $46m was available for draw down by way of advance, with a provision of $14m made available to secure payment of the capitalised interest incurred on part of the advance (“the capitalised interest facility”). The capitalised interest facility could be utilised or converted to a principal sum.[6] The Borrowers required the use of the funds by 28 October 2008 to meet progress claims.[7] By 26 September 2008,[8] $46m was drawn down and it appears that some time in early October 2008, the Borrowers elected to convert part of the capitalised interest facility into a capital sum.[9] On
14 October 2008, Mr Vella, on behalf of the Financiers, emailed Mr Porz and Mr Cowan (the seventh defendant in the main proceeding and company secretary of companies in the Austexx group) that he expected that there would be “formal” approval from the lending committee by 30 October 2008 to convert the interest facility to loan principal. Mr Cowan responded by email to the effect that draw down was actually due on 28 October 2008 and that at most they could delay draw down by one day.[10] On 20 October 2008, the Borrowers gave advance notice to the Financiers for the draw down of $7,241,968 on 28 October 2008.
[5]Ausmezz Pty Ltd & Anor v David Goldberger & Ors [2011] VSC 640 at [2].
[6]Ausmezz Pty Ltd & Anor v David Goldberger & Ors [2011] VSC 640 at [3], [9].
[7]Ausmezz Pty Ltd & Anor v David Goldberger & Ors [2011] VSC 640 at [22], [24].
[8]Ausmezz Pty Ltd & Anor v David Goldberger & Ors [2011] VSC 640 at [12].
[9]Ausmezz Pty Ltd & Anor v David Goldberger & Ors [2011] VSC 640 at [7], [18].
[10]Ausmezz Pty Ltd & Anor v David Goldberger & Ors [2011] VSC 640 at [22].
In Ausmezz Pty Ltd & Anor v David Goldberger & Ors[11] Pagone J held that this request constituted written notification of an election to convert the capitalised interest facility into a principal sum which was notified to the Financiers prior to the date that the principal sum was to be available.[12] On either 20 or 21 October 2008 it became apparent to the Borrowers that the Financiers would not be able to comply with the request for conversion of the capitalised interest facility by 28 October 2008.[13] On 27 October 2008, Mr Porz emailed Mr Cowan and a Mr Davis stating that “we” will not draw any further funds on the Mirvac facility and that “we” would now capitalise interest on the $46m.[14] The following day, Mr Davis emailed Mr Vella forwarding the email from Mr Porz of the previous day.[15] An approach was then made to Nominexx for the funds that the Borrowers required to makeup the shortfall.
[11][2011] VSC 640.
[12]Ausmezz Pty Ltd & Anor v David Goldberger & Ors [2011] VSC 640 at [23].
[13]Ausmezz Pty Ltd & Anor v David Goldberger & Ors [2011] VSC 640 at [24]
[14]Ausmezz Pty Ltd & Anor v David Goldberger & Ors [2011] VSC 640 at [26]
[15]Ausmezz Pty Ltd & Anor v David Goldberger & Ors [2011] VSC 640 at [26]
Mr Gianfriddo, a director of Texxcon who is also one of Texxcon’s representatives on the Nominexx board, deposed in an affidavit in support of the earlier application under s 237 of the Act that Mr Cowan sent an email to him on 29 October 2008 “regarding, amongst other things, a request that Nominexx lend the amount of $14m to Austexx Corporation”[16] and that:
Following receipt of Cowan’s 29 October 2008 email, the Nominexx directors from Texxcon agreed that Texxcon would authorise the loan to Austexx Corporation.[17]
A copy of the email was an exhibit to Mr Gianfriddo’s first affidavit. The proposal put to Mr Gianfriddo was for a total loan of $14m to Austexx in two instalments of $7m, the first on 31 October 2008 and the second on 28 November 2008. It was represented that the loan would be “for a maximum 14 months to Dec 09” and that “the loan can be repaid from Austexx Profit share in part or in full as agreed with”.[18] It was also represented that “Nominexx may call up the loan at any time during the 14 months (Austexx to draw down the undrawn on Mirvac $14m at that time)”.[19] Further, that “Nominexx will advance the $14m (via Austexx Constructions No. 2) to Austexx Melbourne Retail PL (South Wharf JV Entity) in the same manner that the Mirvac funds have been advances to South Wharf as a Partner Capital Contribution.”[20]
[16]Affidavit of John Joseph Gianfriddo sworn 10 March 2011, Paragraph 16.
[17]Affidavit of John Joseph Gianfriddo sworn 10 March 2011, Paragraph 17.
[18]Affidavit of John Joseph Gianfriddo sworn 10 March 2011, Exhibit JJG-6
[19]Affidavit of John Joseph Gianfriddo sworn 10 March 2011, Exhibit JJG-6
[20]Affidavit of John Joseph Gianfriddo sworn 10 March 2011, Exhibit JJG-6.
Mr Gianfriddo, in a second affidavit, deposed that at the time he agreed to Nominexx lending the $14m he was not aware of the decision to capitalise interest on the Mirvac facility and that if he had been, he would not have agreed to the loan. In a third affidavit he deposed that neither he “nor the board of Nominexx” had been informed by either Messrs Wieland, Goldberger or Porz that:
(a)the Borrowers had sought to draw down $7.2m on the capitalised interest portion of the Mirvac facility;
(b)the Financiers under the Mirvac facility had communicated to the Borrower that they were unable to convert the capitalised interest portion of the Mirvac facility into a principal sum to draw down by the date required by the Borrowers (and that there were difficulties in converting the capitalised interest portion at all);
(c)Mr Porz had emailed Mr Cowan and Mr Davis on 27 October 2008 advising that the Borrowers had decided not to draw any further funds on the Mirvac facility but to use the capitalised interest portion to capitalise interest (which, on the basis of the $46m already drawn on the Mirvac facility, would capitalise at a rate of almost $700,000 per month); and
(d)that as a result of the borrowing “at call” from Nominexx, there was a risk that investigating accountants and solicitors would be appointed by the primary lenders of the Austexx group at the group’s expense.[21]
[21]Affidavit of John Joseph Gianfriddo sworn 15 February 2012, Paragraph 7.
The relevance of this last point emerges from the Amended Defence and Counterclaim filed on behalf of Mr Porz (and one other) in the Ausmezz proceeding in which he was sued on the guarantee. Amongst other things, it was pleaded that they had been materially prejudiced by the breach of the facility agreement by the Financiers to convert the capitalised interest facility into a principal sum available for draw down. The particulars to that allegation included that:
As a result of the failure of the plaintiffs to provide the Borrower with the
$14 million under which the Facility Agreement ought to have been available by way of the conversion of the Capitalised Interest Facility into the principal sum available for drawdown, the Borrower’s related entities… borrowed
$14 million from another source. That loan was at call.The Borrower [and related entities] are part of a group of related companies including the Borrower’s parent company Austexx Pty Ltd and a company related to it, Austexx Corporation Pty Ltd and their subsidiaries (the “Group”). The fact that various entities in the Group had borrowed a
$14 million on demand facility caused various lenders to the Group to appoint investigating accountants and solicitors to the assets of the Group over which the lenders had security.[22]
[22]Amended Defence and Counterclaim of the Third and Fourth Defendants filed 1 March 2011, Paragraph 9c.
The alleged misrepresentations sued on by Texxcon and Nominexx are that:
(a)The Loan from Nominexx to Austexx Corporation would be for a maximum of fourteen months;
(b)Austexx Corporation would pay interest on funds drawn under the Loan at a rate of 10% per annum which was also to be paid to Nominexx by December 2009;
(c)Nominexx could call up the Loan at any time during the fourteen months to December 2009 and it would be paid by Austexx Corporation if such call was made;
(d)Funds were available to Austexx Corporation by way of an Interest Capitalisation Facility (Mirvac facility) which was part of a mezzanine loan facility made available to Austexx Corporation by Mirvac Ltd (or a related entity) which could be used to repay the Loan Amount plus interest due the Loan at any time; and
(e)By inference, as a consequence of the representations made in (a) to (d) above, that:
(i)Austexx Corporation then had the capacity to repay the Loan Amount plus accrued interest to Nominexx;
(ii)Austexx Corporation would have the capacity to repay the Loan Amount plus accrued interest to Nominexx at the expiry of fourteen months, in December 2009; and
(iii)At any time during the fourteen month period, Austexx would have the capacity to repay the loan amount plus accrued interest.[23]
[23]Further Amended Statement of Claim filed 16 May 2011, Paragraphs 21 and 32.
Proposed New Pleading
The proposed new pleading takes the form of an allegation that Messrs Wieland, Goldberger and Porz, as directors of both Nominexx and Austexx Corporation, ought to have known that Nominexx was lending $14m to Austexx Corporation. Further that by around 21 or 22 October 2008, alternatively 29 October 2008, Messrs Wieland, Goldberger and Porz knew or ought to have known that:
(a)the Mirvac facility could not be used by Austexx Corporation to repay the loan amount and all the accrued interest to Nominexx “on call” if Nominexx was to make the loan to Austexx Corporation;
(b)Austexx Corporation did not then have the capacity to repay the loan amount and all the accrued interest to Nominexx;
(c)Austexx was unlikely at any time in the foreseeable future to have the capacity to repay the loan amount and all the accrued interest to Nominexx.[24]
[24]Draft Second Further Amended Statement of Claim filed 9 February 2012, Paragraph 45.
It is then alleged that Messrs Wieland Goldberger and Porz, as directors of Nominexx, in accordance with their statutory and common law obligations were required to act (1) with a degree of care and diligence that a reasonable person in a like position in a company would exercise in the company’s circumstances; (2) in good faith and in Nominexx’s best interests; and (3) for proper purpose; and that in breach of those obligations and despite their knowledge, as pleaded, they approved the making of the loan by Nominexx to Austexx Corporation, failed to disclose to the Nominexx board that the Mirvac facility could not be used by Austexx Corporation to repay the loan amount and/or accrued interest to Nominexx “on call”, that Austexx Corporation could not then and was unlikely in the foreseeable future to be able to repay the loan; and had failed to prevent the making of the loan by Nominexx.[25]
[25]Draft Second Further Amended Statement of Claim filed 9 February 2012, Paragraph 47.
Is there a serious question to be tried?
The parties are not in dispute about the applicable principles. The authorities indicate that the test for a serious question to be tried is the same test that applies for applications for interlocutory injunctions and accordingly the standard of proof is the same.[26] The Court will ordinarily conclude that there is a serious question to be tried if there is a probability, on the evidence, that the applicant would be entitled to relief on the claims made.[27]
[26]Goozee & Anor v Graphic World Group Holdings Pty Ltd & Ors (2002) 42 ACSR 534, 541 Barrett J.
[27]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65, 68 [13] (Maxwell P and Charles JA); Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 81-2.
It was submitted for Mr Porz that the essential elements of the proposed pleadings are allegations of fact that:
(a)on about 21 or 22 October 2008, alternatively 29 October 2008, the three directors knew, or ought to have known, that the Mirvac facility could not be used to repay Nominexx “on call” if a loan was made to Austexx Corporation;
(b)Austexx Corporation did not then and was unlikely in the foreseeable future to have the capacity to repay;
(c)the three directors did not disclose these matters to the Austexx board; and
(d)but for which the loan would not have been made and Nominexx suffered loss.
As to elements (a) and (b), it was submitted that in Ausmezz Pty Ltd & Anor v Goldberger & Ors[28] Pagone J made findings as follows in respect of the knowledge of the three directors that are entirely contrary to the allegations now sought to be made:
(a)at some time on either 20 or 21 October 2008, it became apparent to the Borrowers that the Financiers would not be able to comply with the request for conversion of the capitalised interest facility by the required date (28 October 2008); [29]
(b)what the Borrowers then put in place was an alternative interim measure for the funding of the project because of the Financiers’ inability to meet their obligations;[30] none of the Financiers or any person acting on behalf of the Financiers understood from any of the communications anything other than that the borrower was accommodating the Financier’s inability to provide the funds which were required and had been requested;[31]
(c)on 28 October 2008, the Borrowers said they would source the funds needed in October and in November 2008 from other sources as an interim measure;[32]
(d)it was not until April 2009 that the Financiers failed and refused to perform their obligation to make available so much of the capitalised interest facility as remained for conversion into a principle sum;[33]
(e)by October 2008, the Borrowers were seeking additional funds and the approval request to the Lending Committee on 28 October 2008 recorded a request for approval of conversion of the capitalised interest facility without any suggestion of the conversion having been withdrawn;[34] and
(f)that Mirvac (through Mr Vella) had told the borrower on 14 October 2008 that steps were underway and that it was expected that “formal” approval for the draw down would issue by 30 October 2008[35] that is, within two days after the date for which the borrower had given a draw down notice).
[28][2011] VSC 640.
[29]Ausmezz Pty Ltd & Anor v Goldberger & Ors [2011] VSC 640 at [24].
[30]Ausmezz Pty Ltd & Anor v Goldberger & Ors [2011] VSC 640 at [25].
[31]Ausmezz Pty Ltd & Anor v Goldberger & Ors [2011] VSC 640 at [27].
[32]Ausmezz Pty Ltd & Anor v Goldberger & Ors [2011] VSC 640 at [35].
[33]Ausmezz Pty Ltd & Anor v Goldberger & Ors [2011] VSC 640 at [36].
[34]Ausmezz Pty Ltd & Anor v Goldberger & Ors [2011] VSC 640 at [28].
[35]Ausmezz Pty Ltd & Anor v Goldberger & Ors [2011] VSC 640 at [22].
It was submitted that there was accordingly no basis for any director to believe that the Mirvac facility could not be used to repay the proposed Nominexx loan. It was further submitted that it was simply not probable, as at 21 or 22 October 2008 or 29 October 2008, that the Financiers would not meet their obligation to convert the capitalised interest facility to a principle sum which could be drawn down as a capital payment.
It is readily apparent from the judgment that His Honour was reciting the evidence before him insofar as that evidence was material to the determination of the issues that he had to decide. However, neither that evidence, nor the findings of fact (if and in so far as findings were made based on that evidence), provide a complete answer to the proposed allegations based on breaches of directors’ duties. The “knowledge” of the three directors is not determinative of the proposed claim, even on the predication that the Nominexx loan was intended as an interim measure to deal with the situation created by the Financiers’ inability to convert the facility to make the funds available for draw down and that there was no withdrawal by the Borrower of its request for the draw down.[36] The proposed claim is based upon the failure on the part of those directors to disclose what they knew or ought to have known to the Nominexx board and to prevent the making of the loan by Nominexx.
[36]Cf Ausmezz Pty Ltd & Anor v Goldberger & Ors [2011] VSC 640 at [25] and [26]
Mr Gianfriddo has deposed to the matters that were not disclosed to the Texxcon directors on the Nominexx board. Moreover, it is uncontroversial that the Nominexx loan was procured because the Mirvac facility would not be available by the required date. It is also uncontroversial that it was represented that the Mirvac facility could be used by Austexx Corporation to repay the loan amount to Nominexx, if demanded at any time during the period of the loan. The issue raised by the proposed pleading is whether Messrs Wieland, Goldberger and Porz were in breach of their duties as directors of Nominexx in failing to disclose the facts of which they were allegedly aware or should have been aware. I am satisfied on the material before the Court that there is a serious question to be tried as to whether Messrs Wieland, Goldberger and Porz discharged their duties as directors of Nominexx.
There are other factual issues raised on the evidence before the Court in this application, which raise a serious question to be tried on the proposed pleading. Reliance was placed by Texxcon on a document, which showed that interest of approximately $700,000 per month commencing the month of October 2008, was reducing the amount in the capitalised interest facility available for conversion into a capital sum which could be drawn down. It was left unexplained by the three directors in this application how the Mirvac facility could be used to repay a $14m loan plus accrued interest in circumstances where each month that facility was to be diminished by a further $700,000. Reliance was also placed on a spreadsheet discovered by Messrs Wieland and Goldberger in these proceedings which indicate that the Austexx Group forecast a negative cash flow as from November 2008. Thus, some material before the Court indicates there is a factual issue as to whether there was the capacity to repay the whole or part of the loan as at
29 October 2009, and whether it was likely at the time the loan was made, there was the capacity to repay the loan in the foreseeable future.
As to element (c), it was submitted that the proposed pleading did not allege what the Nominexx board was told, or what the other board members knew, and that there was no evidence before the Court on this application about what the board was told or what the other board members knew. It was submitted that absent evidence to that effect, it had not been made out that there had been non disclosure. There was, however, the evidence from Mr Gianfriddo about the matters that neither he nor the other Texxcon representatives on the Nominexx board were told which is sufficient for present purposes to provide the evidentiary basis in support of showing a serious question be tried.
As to element (d) it was submitted that no or no sufficient facts were pleaded and that without the allegation of appropriate facts, that element is not made out as a matter of pleading. The submission appeared to be to the effect that even if there were no obvious means of repayment, it did not follow that the loan would not have been made had the matters which Texxcon alleges in the proposed pleading should have been disclosed, in fact had been disclosed. In my view, the pleading is sufficient. The question of law is not what the Nominexx board would have done had it been told but whether the directors were bound to disclose those matters and whether the failure to do so constituted a breach of their duties as directors.
For the above reasons, I am satisfied that Texxcon has demonstrated that there is a serious question to be tried on the proposed pleading.
Is there sufficient evidence that the applicant is acting in good faith?
Mr Porz disputed that this criterion was satisfied on the material before the Court. The submission was premised on the view that there is no serious question to be tried and further that the findings of the Court in Ausmezz Pty Ltd & Anor v Goldberger & Ors contradict the case that Texxcon seeks to bring at trial. For the reasons already stated, I have rejected those submissions.
In the earlier application for leave to bring the claim on behalf of Nominexx, Texxcon was willing as a condition of leave to indemnify Nominexx for costs and any adverse costs order. I would require Texxcon to give a similar undertaking to the Court with respect to the proposed new claim.
Is the claim in the best interests of Nominexx?
It was again submitted for Mr Porz that this criterion was not met by reason that there was no serious question to be tried and that the case sought to be brought is contradicted by the findings in Ausmezz Pty Ltd & Anor v Goldberger & Ors. Those submissions have been rejected. There is nothing in the material before the Court to mitigate against the conclusion that the proposed claim would not be in the best interests of Nominexx.
Other criteria
I am also satisfied that the requirements of 237(2)(a) and (e) are satisfied. The question of whether it is probable that the company will not itself bring the proceedings or properly take responsibility for them was addressed in my judgment in the earlier application for leave.[37] There is nothing before the Court to indicate that the position has altered.
[37]Texxcon Pty Ltd v Austexx Corporation Pty Ltd & Ors [2011] VSC 203, 33.
Moreover, at least fourteen days’ notice of the proposed claim was given before the application was made.
Leave is granted
Accordingly, I will grant leave to Texxcon to bring the further derivative claim of Nominexx in this proceeding.
SCHEDULE OF PARTIES
S CI 2012 0240
| BETWEEN: | |
| TEXXCON PTY LTD (ACN 120 272 880) | Plaintiff |
| - and - | |
| NOMINEXX PTY LTD (ACN 121 396 503) | Defendant |
SCHEDULE OF PARTIES
S CI 2010 0643
| BETWEEN: | |
| TEXXCON PTY LTD (ACN 120 272 880) | First Plaintiff |
| NOMINEXX PTY LTD (ACN 121 396 503) | Second Plaintiff |
| - and - | |
| AUSTEXX CORPORATION PTY LTD (ACN 100 936 632) | Firstnamed Defendant |
| SOUTH WHARF TOWER PTY LTD (ACN 119 263 384) | Secondnamed Defendant |
| SOUTH WHARF RETAIL PTY LTD (ACN 118 666 274) | Thirdnamed Defendant |
| DAVID CHARLES WIELAND | Fourthnamed Defendant |
| DAVID GOLDBERGER | Fifthnamed Defendant |
| GEOFFREY GORDON PORZ | Sixthnamed Defendant |
| CHRISTOPHER COWAN | Seventhnamed Defendant |
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