Lean v Tumut River Orchard Management Ltd - [2003] FCA 1004

FEDERAL COURT OF AUSTRALIA
Lean v Tumut River Orchard Management Ltd [2003] FCA 1004
GRAEME TREVOR LEAN v TUMUT RIVER ORCHARD MANAGEMENT LTD (IN LIQUIDATION), HP MERCANTILE PTY LTD and RRKM PTY LTD
WAG 329 of 2002
CARR J
23 SEPTEMBER 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 329 OF 2002

BETWEEN:

GRAEME TREVOR LEAN
Applicant

AND:

TUMUT RIVER ORCHARD MANAGEMENT LIMITED
(IN LIQUIDATION) ACN 003 501 611
First Respondent

HP MERCANTILE PTY LIMITED
ACN 067 362 877
Second Respondent

RRKM PTY LIMITED
ACN 008 930 532
Third Respondent

JUDGE:

CARR J

DATE OF ORDER:

23 SEPTEMBER 2003

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The applicant have leave to amend the application and statement of claim in terms of the minute of proposed application and minute of proposed statement of claim (each lodged on 6 June 2003) respectively.
2.The documents lodged on 6 June 2003 and described as “Substituted Application” and “Substituted Statement of Claim” respectively stand as the substituted application and substituted statement of claim and service of those documents is dispensed with.
3.The question of the costs of the motion be stood over for consideration, if necessary, on a date to be fixed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 329 OF 2002

BETWEEN:

GRAEME TREVOR LEAN
Applicant

AND:

TUMUT RIVER ORCHARD MANAGEMENT LIMITED
(IN LIQUIDATION) ACN 003 501 611
First Respondent

HP MERCANTILE PTY LIMITED
ACN 067 362 877
Second Respondent

RRKM PTY LIMITED
ACN 008 930 532
Third Respondent

JUDGE:

CARR J

DATE:

23 SEPTEMBER 2003

PLACE:

PERTH

REASONS FOR JUDGMENT
INTRODUCTION

This is a motion on notice whereby the applicant, perhaps somewhat unusually, seeks an order that he amend the application and statement of claim without leave or, alternatively, have leave to amend the application and statement of claim. Minutes of the proposed substituted application and proposed substituted statement of claim were filed with the notice of motion.
FACTUAL AND PROCEDURAL BACKGROUND
This matter has already been the subject of an interlocutory judgment, delivered on 28 March 2003, in respect of a motion to strike out the statement of claim: Lean v Tumut River Orchard Management Ltd [2003] FCA 269. The following descriptive paragraphs are taken largely from that judgment.
At the material times the first respondent was the registered proprietor of land at Coonabarabran in New South Wales and Mundubbera in Queensland on which it carried on and managed orchards of peaches and nectarines for the purposes of investment schemes. Those activities were conducted pursuant to the terms of two investment deeds (“the Investment Deeds”) and two prospectuses (“the Prospectuses”) which had been issued under the terms of the Investment Deeds.
On 28 April 1999, the first respondent went into voluntary liquidation. Messrs Maxwell William Prentice and Vince Christopher Barilla became joint liquidators pursuant to s 446A(4)(a)(ii) of the Corporations Law.
On 20 November 2002…

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.

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Details

Case: [2003] FCA 1004
Decision Date: 23 SEPTEMBER 2003

CaseChat Overview and Summary

The case of Lean v Tumut River Orchard Management Ltd is a motion on notice where the applicant, Lean, sought an order permitting him to amend his application and statement of claim without leave, or alternatively, to be granted leave to amend them. Lean filed minutes of his proposed substituted application and statement of claim with the notice of motion. This matter had previously been subject to an interlocutory judgment in relation to a motion to strike out the statement of claim. Lean and other group members had entered into contractual arrangements with Tumut River Orchard Management Ltd, investing in two schemes to produce and market peaches and nectarines. The first respondent went into voluntary liquidation, and Lean brought the proceeding as a representative action under Part IVA of the Federal Court of Australia Act 1976.

The legal issue before the court was whether Lean should be granted leave to amend his application and statement of claim. The court considered the Full Court’s explanation in Mayne Nickless Ltd about the time for bringing an application under s 87(1) of the Act and determined that the applicant’s desire to seek injunctive relief by way of an amendment did not, in the present circumstances, make any difference. The court found that there would have been no substance in the respondent’s objections if Lean had initially pleaded this injunctive relief as a basis for a claim under s 87 from the outset.

The court granted Lean leave to amend the application and statement of claim in terms of the respective minutes lodged on 6 June 2003. The documents lodged on that date and described as “Substituted Application” and “Substituted Statement of Claim” respectively were considered as the substituted application and substituted statement of claim, and service of those documents was dispensed with. The question of the costs of the motion was stood over for consideration on a date to be fixed.

ORDERS:

1. The applicant has leave to amend the application and statement of claim in terms of the minute of proposed application and minute of proposed statement of claim (each lodged on 6 June 2003) respectively.
2. The documents lodged on 6 June 2003 and described as “Substituted Application” and “Substituted Statement of Claim” respectively stand as the substituted application and substituted statement of claim and service of those documents is dispensed with.
3. The question of the costs of the motion be stood over for consideration, if necessary, on a date to be fixed.

Orders

Orders of the court

1. The applicant have leave to amend the application and statement of claim in terms of the minute of proposed application and minute of proposed statement of claim (each lodged on 6 June 2003) respectively.

2. The documents lodged on 6 June 2003 and described as “Substituted Application” and “Substituted Statement of Claim” respectively stand as the substituted application and substituted statement of claim and service of those documents is dispensed with.

3. The question of the costs of the motion be stood over for consideration, if necessary, on a date to be fixed.

Background

Background to the litigation

This is a motion on notice whereby the applicant, perhaps somewhat unusually, seeks an order that he amend the application and statement of claim without leave or, alternatively, have leave to amend the application and statement of claim. Minutes of the proposed substituted application and proposed substituted statement of claim were filed with the notice of motion. FACTUAL AND PROCEDURAL BACKGROUND This matter has already been the subject of an interlocutory judgment, delivered on 28 March 2003, in respect of a motion to strike out the statement of claim: Lean v Tumut River Orchard Management Ltd [2003] FCA 269. The following descriptive paragraphs are taken largely from that judgment. At the material times the first respondent was the registered proprietor of land at Coonabarabran in New South Wales and Mundubbera in Queensland on which it carried on and managed orchards of peaches and nectarines for the purposes of investment schemes. Those activities were conducted pursuant to the terms of two investment deeds (“the Investment Deeds”) and two prospectuses (“the Prospectuses”) which had been issued under the terms of the Investment Deeds. On 28 April 1999, the first respondent went into voluntary liquidation. Messrs Maxwell William Prentice and Vince Christopher Barilla became joint liquidators pursuant to s 446A(4)(a)(ii) of the Corporations Law. On 20 November 2002 I gave leave, under s 500(2) of the Corporations Act 2001 (Cth), to the applicant to commence proceedings against the first respondent – see Lean v Tumut River Orchard Management Ltd [2002] FCA 1419. The principal application in this matter is the proceeding brought pursuant to that leave. The application is brought by the applicant as a representative action under Part IVA of the Federal Court of Australia Act 1976 (Cth) on his own behalf and as a representative party on behalf of the group members described in paragraph 2 of the application and paragraph 3 of the statement of claim in which latter paragraph seven persons are named as being group members. In summary, the matters pleaded by the applicant in the statement of claim are as follows. The applicant and the other group members entered into contractual arrangements with the first respondent with a view to investing in two schemes (one in respect of the first respondent’s New South Wales property and the other in respect of the first respondent’s Queensland property – each respectively described as “the Project”) to produce and market peaches and nectarines. Those arrangements included: · a licence agreement (“the Licence Deed”) under which the first respondent granted a licence to an investor (“the Grower”) to occupy a farming allotment; · a farming agreement (“the Farming Agreement”) whereby the first respondent undertook to cultivate and harvest the fruit trees; and · Investment Deeds entered into between the first respondent and a trustee company (a different trustee company in relation to each Project) on behalf of the Growers.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CARR J

The Full Court’s explanation in Mayne Nickless Ltd about the time for bringing an application under s 87(1) of the Act enlarges the choices of relief potentially open to an applicant. I do not think that there would have been any substance in the third respondent’s objections if the applicant had initially in his statement of claim pleaded this injunctive relief as a basis for a claim under s 87 from the outset. The fact that he seeks to do so by way of an amendment does not, in my view, in the present circumstances make any difference. CONCLUSION For the foregoing reasons there will be orders that the applicant have leave to amend the application and the statement of claim in terms of the respective minutes lodged on 6 June 2003. In the notice of motion the applicant sought an order that costs be in the cause. I will hear the parties on the question of costs of the motion.

Ratio Decidendi

Legal Principle Established

Established by: CARR J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 329 OF 2002

BETWEEN:	GRAEME TREVOR LEAN Applicant
AND:	TUMUT RIVER ORCHARD MANAGEMENT LIMITED (IN LIQUIDATION) ACN 003 501 611 First Respondent HP MERCANTILE PTY LIMITED ACN 067 362 877 Second Respondent RRKM PTY LIMITED ACN 008 930 532 Third Respondent
JUDGE:	CARR J
DATE OF ORDER:	23 SEPTEMBER 2003
WHERE MADE:	PERTH

JUDGE:	CARR J
DATE:	23 SEPTEMBER 2003
PLACE:	PERTH