Kirby v Centro Properties Limited

Case [2010] FCA 1115

FEDERAL COURT OF AUSTRALIA

Kirby v Centro Properties Limited [2010] FCA 1115

Citation: Kirby v Centro Properties Limited [2010] FCA 1115
Parties:

RICHARD KIRBY v CENTRO PROPERTIES LIMITED, CPT MANAGER LIMITED and PRICEWATERHOUSECOOPERS

RICHARD KIRBY v CENTRO RETAIL LIMITED, CENTRO MCS MANAGER LIMITED and PRICEWATERHOUSECOOPERS

NICHOLAS VLACHOS, MONATEX PTY LTD and RAMON FRANCO v CENTRO PROPERTIES LIMITED, CPT MANAGER LIMITED, CENTRO RETAIL LIMITED, CENTRO MCS MANAGER LIMITED and PRICEWATERHOUSECOOPERS

File number(s): VID 326 of 2008
VID 327 of 2008
VID 366 of 2008
Judge: RYAN J
Date of judgment: 15 October 2010
Date of hearing: 4 March 2010
Date of last submissions: 25 March 2010
Place: Melbourne
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 52
Counsel for the Applicant in VID 326 of 2008 and VID 327 of 2008: Mr M B J Lee
Solicitor for the Applicant in VID 326 of 2008 and VID 327 of 2008: Maurice Blackburn
Counsel for the Applicants in VID 366 of 2008: Mr L Armstrong
Solicitor for the Applicants in VID 366 of 2008: Slater & Gordon
Counsel for the First and Second Respondents in VID 326 of 2008 and VID 366 of 2008: Mr M Garner
Solicitor for the First and Second Respondents in VID 326 of 2008 and VID 366 of 2008: Freehills
Counsel for the First and Second Respondents in VID 327 of 2008 and Third and Fourth Respondents in VID 366 of 2008: Mr P Jopling QC
Solicitor for the First and Second Respondents in VID 327 of 2008 and Third and Fourth Respondents in VID 366 of 2008: Middletons
Counsel for the Cross-Respondent in VID 326 of 2008, VID 327 of 2008 and VID 366 of 2008: Mr R McHugh SC with Mr S Nixon
Solicitor for the Cross-Respondent in VID 326 of 2008, VID 327 of 2008 and VID 366 of 2008: Mallesons Stephen Jaques

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 326 of 2008
BETWEEN:

RICHARD KIRBY
Applicant
AND:

CENTRO PROPERTIES LIMITED (ACN 078 590 682)
First Respondent and First Cross-Claimant

CPT MANAGER LIMITED (ACN 054 494 307)
Second Respondent and Second Cross-Claimant

PRICEWATERHOUSECOOPERS (ABN 52 780 433 757)
Cross-Respondent

JUDGE:

RYAN J

DATE OF ORDER:

15 OCTOBER 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applicant have leave within 14 days of this day to join PricewaterhouseCoopers as a respondent to the Application herein and further to amend the Further Amended Statement of Claim herein to conform with the draft second further amended statement of claim forming part of Exhibit MJH-1 to the affidavit of Martin James Hyde sworn 22 January 2010 and filed herein and otherwise conforming with the reasons for judgment published this day.

2.Within 21 days of the filing and service of the Further Amended Statement of Claim referred to in paragraph 1 of this Order, each respondent including the added respondent, PricewaterhouseCoopers, file and serve its Further Amended Defence or its Defence thereto as the case may be.

3.The costs of all parties…

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AGLC
Kirby v Centro Properties Limited [2010] FCA 1115
Case
[2010] FCA 1115
Decision Date

CaseChat Overview and Summary

In Kirby v Centro Properties Limited, the dispute centred around the propriety of adding PricewaterhouseCoopers (PwC) as a respondent in proceedings against Centro Properties Limited, with the court examining whether PwC could be joined as a party in the proceedings. The court was tasked with determining whether PwC could be added as a respondent by the Vlachos applicants, as well as considering the joinder of Nicholas Stott as an applicant and PwC as a respondent in the CER proceeding and the CER and CNP proceedings. The legal issues involved the applicability of the requirement for all applicants and represented parties to have a claim against all respondents, as established by the Full Court in Philip Morris. Specifically, the court had to decide whether the applicants had a valid claim against PwC, despite not having made further purchases of securities.

The court found that the requirement for all applicants and represented parties to have a claim against all respondents was applicable. It was determined that any applicant or Group Member who acquired CER securities or CNP securities between 5 April 2007 and 7 or 9 August 2007, and did not subsequently purchase more securities, did not have a claim against PwC. This was based on the reasoning that the applicants did not meet the criteria for joining PwC as a respondent under the established legal framework. Consequently, the motions to add PwC as a respondent in the Vlachos proceeding and to join Nicholas Stott as an applicant and PwC as a respondent in the CER proceeding were refused. However, leave was granted to join PwC as a respondent in the CNP and CER proceedings, with amendments to the statements of claim to include appropriate allegations against PwC.

The court's decision was that the motions for leave to add Nicholas Stott as an applicant and PwC as a respondent in the CER proceeding, and to add PwC as a respondent in the Vlachos proceeding, would be refused. Leave was granted to join PwC as a respondent in the CNP and CER proceedings, with amendments to the statements of claim to include appropriate allegations against PwC. The costs of all parties of and incidental to each motion were reserved for later determination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons explained at [11] and [14] above and amplified in this discussion of the Vlachos proceedings, I have concluded that I am bound to apply the requirement identified by the Full Court in Philip Morris that every applicant and every represented party have a claim against all respondents. I accept that it need not be the same claim but, in this case, any applicant or Group Member who acquired CER securities or CNP securities between 5 April 2007 and 7 or 9 August 2007, as the case may be, and did not subsequently purchase any more CER securities or CNP securities has, for the reasons explained above, no claim against PwC. It follows that the motion by the Vlachos applicants to add PwC as a respondent to the Vlachos proceeding must be refused.Conclusion For the reasons which I have endeavoured to explain, the motions for leave to join Nicholas Stott as an applicant and PwC Securities as a respondent in the CER proceeding and to join PwC as a respondent in the Vlachos proceeding will be refused. There will be leave to the applicant in each of the CNP proceeding and the CER proceeding to join PwC as a respondent to each of those proceedings and further to amend the respective further amended statements of claim to include allegations appropriate to charge the added respondent, PwC. As well, there will be leave otherwise further to amend each further amended statement of claim to conform with the draft second further amended statement of claim exhibited to each affidavit of Martin James Hyde sworn 22 January 2010 and with these reasons. The costs of all parties of and incidental to each motion will be reserved.

Ratio Decidendi

Legal Principle Established

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