Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd
[2002] NSWSC 1063
•7 November 2002
CITATION: Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1063 revised - 14/11/2002 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 3081/97; 1750/02 HEARING DATE(S): 7 November 2002 JUDGMENT DATE: 7 November 2002 PARTIES :
3081/97
Peter Lawrence Lewis (P)
Lamru Pty Ltd (Applicant)
Kation Pty Ltd (Respondent)
Brian Raymond Silvia (Liquidator)
1750/02
Lamru Pty Limited (P)
Kation Pty Limited (D1)
Peter Lawrence Lewis (D2)
Mark Lewis (D3)
Nortex Pty Ltd (In Liq) (D4)JUDGMENT OF: Hamilton J
COUNSEL : N A Cotman SC & J T Johnson (Kation P/L & P L Lewis)
S J Motbey (Lamru P/L)
V R Gray (Liquidator & Nortex P/L)
No appearance (M Lewis)SOLICITORS: Kemp Strang (P L Lewis & Kation P/L)
Lyons & Lyons (Lamru P/L)
Abbott Tout (Liquidator & Nortex P/L)
Corrs Chambers Westgarth (M Lewis)CATCHWORDS: PROCEDURE [101] - Supreme Court procedure - Procedure under Supreme Court Rules - Amendment - Justice between parties - Impact on Court efficiency - Possibility of issues of Anshun estoppel if amendment refused. LEGISLATION CITED: Corporations Act 2001 (Cth) s 237 CASES CITED: Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589DECISION: Additional cross claims should be allowed to be added but ordered to be tried separately and subsequently.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
THURSDAY, 7 NOVEMBER 2002
3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LIMITED (In Liq)
1750/02 LAMRU PTY LIMITED v KATION PTY LIMITED & ORS
JUDGMENT
1 HIS HONOUR: Before me on the first day of the resumed trial of these matters I have an amended notice of motion filed on 7 November 2002 by which Peter Lawrence Lewis and Kation Pty Limited (“the defendants”) seek leave to file amended points of defence and an amended cross claim in a form propounded last week. Further, they seek leave to rely upon the whole of the amended cross claim in this trial, despite direction 7 made by me on 27 March 2002. The applicant, Peter Lawrence Lewis, also seeks leave nunc pro tunc, pursuant to s 237 of the Corporations Act 2001 (Cth) (“the CA”), to commence and maintain the amended cross claim in these proceedings on behalf of Nortex Pty Limited (in Liquidation).
2 The history of the matter is that, in giving pretrial directions on 27 March 2002, I allowed the first and second defendants to file points of defence and amended cross claim, but directed that they not be at liberty to rely on pars 42 to 63 of the amended cross claim without the further leave of the Court. I had up to that time been hopeful that I could create a regime in which all the multifarious claims amongst these quarrelsome litigants could be dealt with. On 27 March, it became apparent that they could not all be dealt with in these proceedings. The reason that I allowed pars 42 to 63 of the amended cross claim to be filed but not proceeded with was so that the claims comprehended in those paragraphs would be upon the litigious table and so that, if they came to be litigated at a later time, the Court would not be enmeshed in troublesome issues arising from the doctrine in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 or Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589. After that, the matter went to trial before me in April 2002 and proceeded for a number of days. There was no application between 27 March and the commencement of the trial for leave to rely upon the claims in pars 42 to 63 of the amended cross claim or to have those matters encompassed in the trial before me. The April fixture proving inadequate for the expanded litigation, the matters have been stood over for the trial to continue before me on 7 November 2002, being today, and for some ensuing time.
3 As I have said, further and expanded amended points of cross claim were brought to Court when the present motion in its original form came before me last week. Although I gather there was correspondence between the parties over the months following April, no decisive step was taken before last week to procure the Court's determination on the filing of the further amended pleading or to procure the leave contemplated by my direction 7 of 27 March 2002.
4 Part of the matters now sought to be agitated in this trial include matters that overlap with, or are likely to be impinged upon by, proceedings that are current and will, in the not very distant future, come to trial in the High Court of New Zealand between the present parties and other parties. I certainly should not allow these matters to come to trial in this Court at this time when the parties have chosen to agitate matters that may well impinge upon them in the New Zealand Court and to advance those proceedings to the point of trial. Furthermore, I do not propose to allow the matters now brought forward to be agitated in the present trial when it is quite plain that, by reason of the excision from the trial as far back as March of pars 42 to 63 of the cross claim and the existence of separate matters between the parties being dealt with in New Zealand, all matters in contention between the parties cannot be dealt with upon the present trial. I except from this ruling some matters that are comprehended in the amended cross claim which Mr Motbey, of counsel for Lamru, has indicated he could deal with and would prefer to have dealt with in the present proceedings, since all parties would prefer to have them dealt with now.
5 However, I do intend to continue in the policy that I initiated on 27 March 2002 of allowing all claims at least to be brought into Court. The parties do not deserve a great deal of consideration relating to this, in view of the lateness at which the matter is sought to be brought to a head and the general air of lack of cooperation in which these proceedings are being conducted and as they have heretofore been conducted. However, to spare the Court the Henderson or Anshun issue, I think the best policy is to allow the cross claim to be amended further to include all possible claims, but to make an order for the separate determination of the issues which have not been included in the trial preparation up to date. This course was indicated as appropriate in not dissimilar circumstances by Powell JA in Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 604 – 605.
6 Insofar as Mr Lewis requires an order under s 237 of the CA to agitate the additional matters that Mr Motbey agrees to having agitated, Lamru does not oppose the granting of leave under s 237. I shall permit the cross claim to be filed in a form which raises other derivative actions, but I am not to be taken as deciding the question of whether or not those claims should be allowed to proceed as derivative actions. Insofar as they require leave under s 237, that will require to be sought nunc pro tunc at a later time. Equally, I do not intend, by allowing the cross claim to be filed in that form at this stage, to preclude applications by the Lamb interests for strikeout or other summary relief in relation to those cross claims at a later time, if that becomes appropriate.
7 Mr Motbey has brought forward a rough form of short minutes which defines the matters that he has been prepared to concede, but there will require further refinement before the orders are made. Equally, the presently propounded points of defence and cross claim are not in satisfactory form. They complicate life by changing paragraph numbers, eg, the pars 42 to 63 mentioned in the directions of 27 March 2002, in a way which appears to be totally unnecessary and has made the matter hard to deal with today and would make the matter harder to deal with in the future. If they wish to procure the order for leave which I have in general terms in these reasons indicated that I am prepared to grant, the applicants will need to bring forward in the next few days a document which retains the numbering of the existing defence and cross claim so far as possible; which indicates by underlining the amendments that will be made in the document filed pursuant to the grant of leave (the present document proceeds by reference to an interpolated document which is now lost or irrelevant); which separates out and alleges separately the causes of action or claims which Mr Motbey indicates he is prepared to proceed on, if they wish to pursue those claims; and which states separately and compendiously the claims in respect of which it is contemplated that an order for separate and later decision will be made.
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