Neobev Pty Ltd v Bacchus Distillery Pty Ltd (Administrators Appointed) (No 2)

[2013] FCA 1374

FEDERAL COURT OF AUSTRALIA

Neobev Pty Ltd v Bacchus Distillery Pty Ltd (Administrators Appointed) (No 2) [2013] FCA 1374

Citation:		Neobev Pty Ltd v Bacchus Distillery Pty Ltd (Administrators Appointed) (No 2) [2013] FCA 1374
Parties:		NEOBEV PTY LTD (ACN 165 795 746) v BACCHUS DISTILLERY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 065 961 711); MAX SCOTT CONSULTING PTY LTD and MAX SCOTT
File number:		SAD 291 of 2013
Judge:		BESANKO J
Date of judgment:		12 December 2013
Date of hearings:	11, 12 December 2013
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Applicant/Cross-Respondents:	Mr D Williams SC
Solicitor for the Applicant/Cross-Respondents:	Piper Alderman
Counsel for the Respondent/Cross-Claimant:	Mr T Cox SC
Solicitor for the Respondent/ Cross-Claimant:	DMAW Lawyers as town agents for Mills Oakley Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 291 of 2013

BETWEEN:

NEOBEV PTY LTD (ACN 165 795 746)
Applicant/First Cross-Respondent

MAX SCOTT CONSULTING PTY LTD
Second Cross-Respondent

MAX SCOTT
Third Cross-Respondent

AND:

BACCHUS DISTILLERY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 065 961 711)
Respondent/Cross-Claimant

JUDGE:	BESANKO J
DATE OF ORDER:	12 DECEMBER 2013
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The applicant have leave to amend the originating application in terms of document number 1 in the applicant’s book of proposed amended documents.

2.The applicant have leave to amend the statement of claim in terms of document number 2 in the applicant’s book of proposed amended documents, save and except paragraphs 33A to 33F inclusive.

3.The application to amend the statement of claim to add paragraphs 33A to 33F inclusive be adjourned to 10.15am on Monday 16 December 2013.

4.The applicant pay the respondent’s costs of the application to amend the originating application and the statement of claim and the costs thrown away as a result of those amendments, with the respondent granted liberty to apply.

5.The applicant give further security by 10.15am on Monday 16 December 2013 for the respondent’s costs by way of payment of $25,000 into the trust account of Piper Alderman together with irrevocable instructions that those funds be used to pay any order for costs made in favour of the respondent (which is not offset by any order for costs made in favour of the applicant).

6.The costs of the respondent’s application to have the affidavit of Mr Scott sworn on 10 December 2013 and the respective affidavits of Mr Morton and Mr Fotheringham excluded from the evidence to be given at the trial be reserved.

7.The first cross respondent’s application to file and serve an amended defence to the cross claim and the second and third cross respondents’ application to file defences to the cross claim be adjourned to Monday 16 December 2013 at 10.15am.

8.The time within which the respondent serve an outline of submissions (not exceeding 15 pages), list of objections and list of authorities be extended to 5.00pm on Sunday 15 December 2013.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 291 of 2013

BETWEEN:

NEOBEV PTY LTD (ACN 165 795 746)
Applicant/First Cross-Respondent

MAX SCOTT CONSULTING PTY LTD
Second Cross-Respondent

MAX SCOTT
Third Cross-Respondent

AND:

BACCHUS DISTILLERY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 065 961 711)
Respondent/Cross-Claimant

JUDGE:	BESANKO J
DATE:	12 DECEMBER 2013
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. As to the application by the applicant to amend the originating application and the statement of claim, the respondent helpfully characterised the classes of amendments in its submissions.  There is no substantial opposition to the amendments identified in paragraphs 21.1 and 21.2 of the respondent’s submissions.  I will allow those amendments. 

2. There was strong opposition to the amendments identified in paragraph 21.3 of the respondent’s submissions.  The principal amendment here is the addition of Annexure C, which refers to 69 documents.  I will allow this amendment for the following reasons. 

3. First, the applicant should be permitted to raise all relevant claims unless that is clearly not in the interests of justice.  Secondly, the trial is next week, and the amendment will add a burden to the respondent.  Nevertheless, I would not be prepared to say at this stage that the amendment is only coming forward now as a result of a substantial fault on the part of the applicant, or, that I can be clearly satisfied that the respondent cannot deal with the amendments at the trial next week.  Thirdly, my perusal of the documents suggests that the documents can be placed into categories and dealt with in that way.  Fourthly, if there is a clear instance of prejudice to the respondent which arises next week, then that can be raised at the time, and I can, if it is appropriate, fashion orders to deal with it. 

4. I will adjourn the application to amend to add the amendments which are the subject of paragraph 21.4 to the start of the trial next week.

5. With respect to Mr Scott’s affidavit sworn on 10 December 2013 and in particular, paragraphs 6 to 12 inclusive, I will allow those paragraphs and such a ruling follows from my ruling on the application to amend the statement of claim.  I refuse to disallow the balance of Mr Scott’s affidavit and the respective affidavits of Mr Morton and Mr Fotheringham.  I am not satisfied that they are not affidavits in reply.  Two points should be noted:  there may be objections to certain passages in the relevant affidavits which leads to evidence being excluded or developed in a different way to the way in which it is at the moment.  Secondly, if there is a particular passage which is said not to be in reply, then that can be raised by the respondent when there is an application to tender the affidavit.

6. The applicant must pay the respondent’s costs of the application to amend the originating application and the statement of claim and the costs thrown away as a result of the amendments.

7. I see no reason to exclude the application to amend to add Schedule C from the scope of that order.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:       17 December 2013