Re Graziers Pastoral Pty Ltd - [2021] NSWSC 1680

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Graziers Pastoral Pty Limited; In the matter of Windsor Livestock Holdings Pty Limited; In the matter of Windsor Livestock Pty Limited [2021] NSWSC 1680
Hearing dates: 13 December 2021
Date of orders: 13 December 2021
Decision date: 21 December 2021
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Interlocutory Process dismissed other than in respect of the amendments by consent.

Catchwords:
CIVIL PROCEDURE — Pleadings — Amendment — Where substantial delay in seeking to amend the pleadings — Close proximity of the hearing — Where amendment would not allow sufficient time for defendants to lead evidence or require vacation of the hearing date.
CIVIL PROCEDURE — Pleadings — Amendment — – matters required for defendants to plead defence under business judgment rule.
EVIDENCE — Expert evidence — Whether to grant leave under UCPR r 31.28 to rely upon late expert report — Whether exceptional circumstances exist — Where defendants delayed in retaining experts and serving the expert reports — Where reliance on expert reports would require vacation of hearing date.

Legislation Cited:
- Civil Procedure Act 2005 (NSW), ss 56, 57, 68, 60, 64
- Corporations Act 2001 (Cth), ss 180(2), 232, 233

Cases Cited:
- Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; [2009] HCA 27
- Bi v Mourad [2010] NSWCA 17
- Commonwealth Bank v Iinvest (No 7) [2017] NSWSC 440
- Correa v Whittingham [2012] NSWSC 266
- Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2008] VSC 77
- Great Southern Finance Pty Ltd (in liq) v Rhodes (2014) 103 ACSR 137; [2014] WASC 431
- Gunns Ltd v Marr [2005] VSC 251
- Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
- Iacullo v Iacullo [2013] NSWSC 1517
- Power v Eckstein (2010) 77 ACSR 302; [2010] NSWSC 137
- Re Bishay Developments Pty Ltd [2019] NSWSC 29
- Re Elsmore Resources Ltd [2016] NSWSC 884
- San v Rumble (No 2) [2007] NSWCA 259
- UBS AG v Tyne as Trustee of the Argot Trust (2018) 360 ALR 184; [2018] HCA 45
- Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
- Young v Hones [2013] NSWSC 580

Category: Procedural rulings
Parties: John Parilo (First Plaintiff)
WD Capital Pty Limited (Second Plaintiff)
Parilo Holdings Pty Limited (Third Plaintiff)
Graziers Pastoral Pty Limited (First Defendant)
Windsor Livestock Holdings Pty Limited (Second Defendant)
Windsor Livestock Pty Limited (Third Defendant)
Suelen McCallum (Fourth Defendant)
Riad Tayeh (Fifth Defendant)
Alan Gordon Taylor (Sixth Defendant)
Free Flight Australia Pty Limited (Seventh Defendant)
Redglint Pty Limited (Eighth Defendant)
Representation:
Counsel:
M Einfeld QC/D Smith (Plaintiffs)
J Adamopoulos (First – Fifth Defendants)
A Combe (Sixth – Eighth Defendants)
Solicitors:
StevensVuran Lawyers (Plaintiffs)
Coleman Greig Lawyers (First – Fifth Defendants)
William Roberts Lawyers (Sixth – Eighth Defendants)

File Number(s): 2020/106004

Judgment

Nature of the applications

These proceedings commenced in…

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: [2021] NSWSC 1680
Decision Date: 21 December 2021

CaseChat Overview and Summary

In the case of Re Graziers Pastoral Pty Ltd, the plaintiffs sought to amend their pleadings in close proximity to the hearing date. The defendants opposed the amendment, arguing it would not allow sufficient time to lead evidence and would require the vacation of the hearing date. The plaintiffs argued that the amendment was necessary to enable them to plead defences under the business judgment rule. The case involved a dispute over whether the plaintiffs were entitled to amend their pleadings, and if so, under what circumstances the court should grant such an amendment.

The court was required to determine the circumstances under which an amendment to pleadings would be allowed, particularly in light of the business judgment rule. The court also needed to decide whether exceptional circumstances existed to justify the late submission of expert evidence and whether such evidence should be admitted if it required the vacation of the hearing date. The defendants argued that the amendment would prejudice their right to a fair trial by not allowing sufficient time to respond to the new pleadings and to lead evidence.

The court found that the plaintiffs' substantial delay in seeking to amend their pleadings, coupled with the close proximity to the hearing date, meant that the amendment would not allow sufficient time for the defendants to lead evidence or require the vacation of the hearing date. The court also found that the defendants did not need to plead matters under the business judgment rule, and that the plaintiffs' reliance on expert evidence was not justified as it would require the vacation of the hearing date. The court held that the plaintiffs' application for amendment was denied, and that the defendants' application to rely on expert evidence was also denied.

The court ordered that the plaintiffs' application for amendment was denied, and that the defendants' application to rely on expert evidence was also denied. The court found that the plaintiffs' delay in seeking to amend their pleadings and the late submission of expert evidence did not constitute exceptional circumstances, and that such actions prejudiced the defendants' right to a fair trial. The court emphasised the importance of timely action and the need for parties to ensure that their pleadings and evidence are prepared and served in a timely manner.

Orders