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Intagro v ANZ Banking Group

Intagro v ANZ Banking Group

Case [2004] NSWSC 618 29 July 2004

Jurisdiction

Statutory Interpretation

Contract Formation

Civil Litigation & Procedure

Corporate Law & Governance

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Reported Decision:
50 ACSR 224
(2004) 22 ACLC 1065

Supreme Court

CITATION: Intagro v ANZ Banking Group [2004] NSWSC 618

HEARING DATE(S): 9 July 2004

JUDGMENT DATE:
29 July 2004

JUDGMENT OF: McDougall J at 1

DECISION: See paras [86] and [87] of judgment

CATCHWORDS: PRACTICE AND PROCEDURE - where leave to amend cross-claim sought - where amendment to cross-claim seeks to join cross-defendants - whether amendment raises claim that is obviously futile - whether amendment raises claim that is premature - whether amendment should not be permitted on discretionary grounds - where risk of relitigation - CORPORATIONS LAW - construction of s 197(1) Corporations Act 2001 (Cth) - whether majority view in Hanel v O'Neill (2003) 48 ACSR 378 plainly wrong - s 233 Corporations Law - statutory interpretation - whether legislature intended s197(1) to re-enact in substance, and with same effect, s 233(2) of Law - whether legislature intended s 197(1) to replace s 233(2) with provision of opposite effect - whether legislative intention that s 197(1) achieve some other purpose - meaning of "entitled" in s 197(1), (2) of Act.

LEGISLATION CITED: Corporations Act 2001 (Cth)
Corporations Law

CASES CITED: Hanel & Anor v O'Neill (2003) 48 ACSR 378
Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485
Little v Registrar of the High Court of Australia (1991) 29 FCR 544
Sterling Engineering Co Ltd v Patchett [1955] AC 534
Hill v Hasler [1921] 3 KB 643
Burswood Management Limited v Attorney-General (Cth) (1990) 23 FCR 144
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Horton v Jones (No 2) (1939) 39 SR (NSW) 305
Octavo Investments Proprietary Limited v Knight (1979) 144 CLR 360
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438
Forster v Jododex Australia Pty Limited (1972) 127 CLR 421
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

PARTIES :
Intagro Projects Pty Ltd (Plaintiff/Cross-Defendant)
Australia and New Zealand Banking Group Limited (Defendant/Cross Claimant)

FILE NUMBER(S): SC 50165/03

COUNSEL: D J Hammerschlag SC/LV Gyles (Plaintiff/Cross-Defendant)
S D Rares SC/P J Dowdy (Defendant/Cross-Claimant)

SOLICITORS: Holding Redlich (Plaintiff/Cross-Defendant)
Minter Ellison (Defendant/Cross-Claimant)

INTAGRO PROJECTS PTY LTD v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

50165/03

INDEX – JUDGMENT 29 JULY 2004

Paragraph

Introduction 1

The nature of the proceedings 4

The proposed amendment to the cross-claim 7

Section 197 and its predecessor 8

The fundamental issue 10

The decision in Hanel 13

Analysis of the decision in Hanel 24

Other views on the construction of s 197 51

The preferred construction of s 197(1) 57

Is the majority view in Hanel plainly wrong? 61

The test to be applied to a proposed amendment 64

Prematurity 66

Discretionary considerations 76

The proposed further amendment 82

Conclusion and orders 86

IN THE SUPREME COURT
OF NEW SOUTH WALES

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Intagro v ANZ Banking Group

Details

AGLC: Intagro v ANZ Banking Group [2004] NSWSC 618
Case: [2004] NSWSC 618
Decision Date: 29 July 2004

CaseChat Overview and Summary

In the matter of Intagro v ANZ Banking Group, the court was called upon to determine whether leave should be granted for an amendment to a cross-claim that sought to join additional cross-defendants. The application was brought before the Federal Court, highlighting a dispute concerning the interpretation and application of statutory provisions under the Corporations Act 2001 (Cth).

The primary legal issues centred on whether the proposed amendment to the cross-claim was obviously futile, premature, or should be denied on discretionary grounds. Specifically, the court had to consider if the amendment raised claims that were futile, premature, or if permitting the amendment would risk relitigation. Additionally, the case involved a construction of section 197(1) of the Corporations Act 2001 (Cth), questioning whether the majority view in Hanel v O'Neill (2003) 48 ACSR 378 was plainly wrong. The court also examined whether the legislature intended section 197(1) to re-enact, with the same effect, section 233(2) of the Law, or if it intended to replace it with a provision of opposite effect or some other purpose. The meaning of "entitled" within sections 197(1) and 197(2) of the Act was also a significant point of contention.

The court deliberated on the nature and potential implications of the proposed amendment, concluding that the amendment raised claims that were not obviously futile and were not premature. However, the court determined that permitting the amendment would not be appropriate on discretionary grounds, primarily due to the risk of relitigation. The court found that the legislature's intention behind section 197(1) was not to re-enact section 233(2) with the same effect, nor to replace it with a provision of opposite effect. Instead, the court held that the legislature intended for section 197(1) to achieve some other purpose, distinct from section 233(2). The meaning of "entitled" in sections 197(1) and 197(2) was interpreted in light of these findings.

Accordingly, the court denied the leave to amend the cross-claim, thus concluding the matter on the basis of the aforementioned reasoning and findings.

Orders