FEDERAL COURT OF AUSTRALIA
Kadam v MiiResorts Group 1 Pty Ltd [2016] FCA 1205
File number: QUD 528 of 2016 Judge: EDELMAN J Date of judgment: 10 October 2016 Catchwords: PRACTICE AND PROCEDURE – application by non-party to be joined as an applicant – application opposed by existing applicants – scope of r 9.05 of Federal Court Rules2011 (Cth) – scope of general power in r 1.32 – discretionary considerations Legislation: Federal Court Rules 2011 (Cth) rr 1.31, 1.32, 1.33, 9.05, 9.05(a), 9.05(b)(i), 9.05(b)(ii), 9.05(b)(iii), 9.12, 9.12(3)
Federal Court Rules 1979 (Cth) Or 6 r 8
Federal Court of Australia Act 1976 (Cth) s 37M
Securities and Exchange Board of India Act 1992
Cases cited: Commerzbank Aktiengesellschaft v Morgan [2004] EWHC 2771 (Ch)
Dauguet v Centrelink [2015] FCA 395
Grant v BHP Coal Pty Ltd [2015] FCA 329
McAlister v State of New South Wales [2014] FCA 702; (2014) 223 FCR 1
News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Sensis Pty Ltd v Bivami Pty Ltd [2012] FCA 1365
State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291
Date of hearing: 10 October 2016 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 32 Counsel for the Applicants: CM Kenny QC and SS Monks Solicitor for the Applicants: Shine Lawyers Counsel for the Prospective Fourth Applicant/Intervener: M Hodge Solicitor for the Prospective Fourth Applicant/Intervener: DLA Piper Australia Counsel for the First Respondent: D Savage QC and M Hickey Solicitor for the First Respondent: Tucker & Cowen Solicitors Solicitor for the Second Respondent: S Tolhurst of HWL Esbworth Lawyers Solicitor for Third Respondent: The Third Respondent did not appear ORDERS
QUD 528 of 2016 BETWEEN: SUNANDA BALKRISHNA KADAM
First Applicant
VISHAL DILIP MHETRE
Second Applicant
ABASAHEB RUPNAR (and another named in the Schedule)
Third Applicant
AND: MIIRESORTS GROUP 1 PTY LTD ACN 140 177 395
First Respondent
PEARLS INFRASTRUCTURE PROJECTS LIMITED (INDIA)
Second Respondent
PACL LIMITED (INDIA)
Third Respondent
JUDGE:
EDELMAN J
DATE OF ORDER:
10 OCTOBER 2016
THE COURT ORDERS THAT:
1.The application by the Securities and Exchange Board of India (SEBI) to be joined as a party be dismissed.
2.The cost of the application in order 1 above, as between the SEBI and the applicants, be reserved.
3.There be no order as to costs of the application in order 1 above in relation to the respondents.
4.The SEBI have leave to intervene in the proceedings.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
EDELMAN J:
Introduction
This is an application by a non-party, the Securities and Exchange Board of India (SEBI) to be joined as the fourth applicant in this proceeding.
The proceeding is a closed class representative proceeding. The current applicants make numerous allegations, but the heart of…
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- Case
- [2016] FCA 1205
- Decision Date
CaseChat Overview and Summary
The court concluded that it was not necessary for SEBI’s application to be conditional upon being granted leave to intervene in any relevant separate proceeding. The issues in any separate proceeding might be entirely unconnected with the applicants and could be determined if, and when, SEBI commenced any separate proceeding. The court found that SEBI’s application for joinder must be dismissed. However, SEBI should be given leave to intervene. The decision on whether SEBI should later be joined as an applicant or as a respondent might depend on how the proceeding progressed. It may be most efficient and convenient for SEBI to commence its own proceeding, which might be consolidated with the present proceeding.
The court decided that the costs of the application should be reserved between SEBI and the applicants to be dealt with in light of later developments in the conduct of this and related proceedings by the applicants and SEBI. There should be no order as to the costs of the application in relation to the respondents. The court considered this to be the first interlocutory application in this proceeding and noted that numerous other interlocutory applications were foreshadowed. However, the issues did not currently appear to be overly complex, and the conduct of the litigation by the solicitors and their cooperation had so far been encouraging, suggesting that legal costs may not become disproportionate.
The court made the following orders: 1. The application by SEBI to be joined as a party be dismissed. 2. The cost of the application be reserved between SEBI and the applicants. 3. There be no order as to costs of the application in relation to the respondents. 4. SEBI have leave to intervene in the proceedings.
Orders
Orders of the court
1. The application by the Securities and Exchange Board of India (SEBI) to be joined as a party be dismissed.
2. The cost of the application in order 1 above, as between the SEBI and the applicants, be reserved.
3. There be no order as to costs of the application in order 1 above in relation to the respondents.
4. The SEBI have leave to intervene in the proceedings.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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