Sheahan, in the matter of Atsikbasis Nominees Pty Ltd (in Liquidation) (No 3)

[2013] FCA 982

FEDERAL COURT OF AUSTRALIA

Sheahan, in the matter of Atsikbasis Nominees Pty Ltd (in Liquidation) (No 3) [2013] FCA 982

Citation:		Sheahan, in the matter of Atsikbasis Nominees Pty Ltd (in Liquidation) (No 3) [2013] FCA 982
Parties:		JOHN SHEAHAN AS LIQUIDATOR OF ATSIKBASIS NOMINEES PTY LTD (IN LIQUIDATION) ACN 007 769 557 and ATSIKBASIS NOMINEES PTY LTD (IN LIQUIDATION) ACN 007 769 557) v ATSIKBASIS NOMINEES NO. 2 PTY LTD (ACN 100 537 415) AS TRUSTEE OF THE ATSIKBASIS FAMILY SETTLEMENT NO. 2, MANUEL ATSIKBASIS, MARIA ATSIKBASIS, FOTINA ATSIKBASIS, HELEN ATSIKBASIS-STAMATELOPOULOS, PETER ATSIKBASIS, NICHOLAS ATSIKBASIS, MANUEL ATSIKBASIS AND MARIA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE MANUEL ATSIKBASIS FAMILY SUPERANNUATION FUND, NICHOLAS ATSIKBASIS AND FOTINA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE NICHOLAS ATSIKBASIS FAMILY SUPERANNUATION FUND, SPIROS ATSIKBASIS, MARIA ATSIKBASIS, PANAGIOTIS (PETER) ATSIKBASIS AND AIKATERINI ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE PETER & KATHY ATSIKBASIS SUPERANNUATION FUND, MESSARIUS NOMINEES PTY LTD (ACN 100 537 442) AS TRUSTEE OF THE MANUEL ATSIKBASIS FAMILY TRUST NO. 2, NICHOLAS ATSIKBASIS AND FOTINA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE FOTINA ATSIKBASIS FAMILY TRUST and MACOBU NOMINEES PTY LTD (ACN 100 537 460) AS TRUSTEE OF THE SPIROS ATSIKBASIS FAMILY TRUST NO. 2; LINCOLN ENGINEERS PTY LTD (ACN 007 812 713); RANKINE SOLICITORS, RANKINE TUCKER LAWYERS, FOX TUCKER LAWYERS and MERCHANT ACCOUNTING PARTNERS PTY LTD
File number:		SAD 131 of 2012
Judge:		BESANKO J
Date of judgment:		25 September 2013
Legislation:		Federal Court Rules 2011 (Cth) r 15.01(b)
Date of hearing:	25 September 2013
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	4
Counsel for the Plaintiffs:	Mr B Roberts
Solicitor for the Plaintiffs:	Griffins Lawyers
Counsel for the Defendants/Cross-Plaintiffs:	Mr A Tokley SC
Solicitor for the Defendants/Cross Plaintiffs:	Nick Xenophon & Co
Counsel for the First, Second and Third Cross-Defendants:	Mr D Blight
Solicitor for the First, Second and Third Cross-Defendants:	Gilchrist Connell
Counsel for the Fourth Cross-Defendant:	Mr T Cox SC
Solicitor for the Fourth Cross-Defendant:	Cosoff Cudmore Knox

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 131 of 2012

IN THE MATTER OF ATSIKBASIS NOMINEES PTY LTD
(IN LIQUIDATION)

BETWEEN:

JOHN SHEAHAN AS LIQUIDATOR OF ATSIKBASIS NOMINEES PTY LTD (IN LIQUIDATION) ACN 007 769 557
First Plaintiff

ATSIKBASIS NOMINEES PTY LTD (IN LIQUIDATION) ACN 007 769 557)
Second Plaintiff

AND:

ATSIKBASIS NOMINEES NO. 2 PTY LTD (ACN 100 537 415) AS TRUSTEE OF THE ATSIKBASIS FAMILY SETTLEMENT NO. 2
First Defendant/First Cross-Plaintiff

MANUEL ATSIKBASIS
Second Defendant/Second Cross-Plaintiff

MARIA ATSIKBASIS
Third Defendant/Third Cross-Plaintiff

FOTINA ATSIKBASIS
Fourth Defendant/Fourth Cross-Plaintiff

HELEN ATSIKBASIS-STAMATELOPOULOS
Fifth Defendant/Fifth Cross-Plaintiff

PETER ATSIKBASIS
Sixth Defendant/Sixth Cross-Plaintiff

NICHOLAS ATSIKBASIS
Seventh Defendant/Seventh Cross-Plaintiff

MANUEL ATSIKBASIS AND MARIA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE MANUEL ATSIKBASIS FAMILY SUPERANNUATION FUND
Eighth Defendant/Eighth Cross-Plaintiff

NICHOLAS ATSIKBASIS AND FOTINA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE NICHOLAS ATSIKBASIS FAMILY SUPERANNUATION FUND
Ninth Defendant/Ninth Cross-Plaintiff

SPIROS ATSIKBASIS, MARIA ATSIKBASIS, PANAGIOTIS (PETER) ATSIKBASIS AND AIKATERINI ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE PETER & KATHY ATSIKBASIS SUPERANNUATION FUND
Tenth Defendant/Tenth Cross-Plaintiff

MESSARIUS NOMINEES PTY LTD (ACN 100 537 442) AS TRUSTEE OF THE MANUEL ATSIKBASIS FAMILY TRUST NO. 2
Eleventh Defendant/Eleventh Cross-Plaintiff

NICHOLAS ATSIKBASIS AND FOTINA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE FOTINA ATSIKBASIS FAMILY TRUST
Twelfth Defendant/Twelfth Cross-Plaintiff

MACOBU NOMINEES PTY LTD (ACN 100 537 460) AS TRUSTEE OF THE SPIROS ATSIKBASIS FAMILY TRUST NO. 2
Thirteenth Defendant/Thirteenth Cross-Plaintiff

LINCOLN ENGINEERS PTY LTD (ACN 007 812 713)
Fourteenth Cross-Plaintiff

RANKINE SOLICITORS
First Cross-Defendant

RANKINE TUCKER LAWYERS
Second Cross-Defendant

FOX TUCKER LAWYERS
Third Cross-Defendant

MERCHANT ACCOUNTING PARTNERS PTY LTD
Fourth Cross-Defendant

JUDGE:	BESANKO J
DATE OF ORDER:	25 SEPTEMBER 2013
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The defendants be given leave to file and serve an amended defence in the form of the third amended defence which is annexure “PJJ-21” to the affidavit of Peter James Jackson sworn on 10 September 2013 within 2 days.

2.The plaintiffs have leave to file and serve any amended reply within 7 days of the service of the third defence.

3.The defendants and cross-plaintiffs be given leave to file and serve an amended cross-claim amending or adding the following paragraphs:

3.1paragraphs 69A-69G, 71.4, 101A, 104, 104.1, 104.1A, 104.2A, 108.7A-108.7D in the form of the second amended statement of cross-claim which is annexure “PJJ-20” to the said affidavit of Mr Jackson; and

3.2paragraph 70 in the form set out in paragraph 9 of the defendants’ and cross-plaintiffs’ outline of submissions dated 24 September 2013;

within 2 days.

4.The cross-defendants have leave to file and serve amended defences within 14 days of the service of the amended cross-claim.

5.The time for the fourth cross-defendant to file and serve any affidavit containing their evidence in chief of any lay witnesses on the cross-claim be extended nunc pro tunc to a period within 7 days of the service of its defence on the cross-plaintiffs.

6.The plaintiffs have their costs occasioned by the amendments to the defence and the costs of today.

7.The cross-plaintiffs pay the cross-defendants’ costs of and incidental to the application made in respect of paragraphs 3 and 4 of the interlocutory application dated 10 September 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 131 of 2012
IN THE MATTER OF ATSIKBASIS NOMINEES PTY LTD (IN LIQUIDATION)

BETWEEN:

JOHN SHEAHAN AS LIQUIDATOR OF ATSIKBASIS NOMINEES PTY LTD (IN LIQUIDATION) ACN 007 769 557
First Plaintiff

ATSIKBASIS NOMINEES PTY LTD (IN LIQUIDATION) ACN 007 769 557)
Second Plaintiff

AND:

ATSIKBASIS NOMINEES NO 2. PTY LTD (ACN 100 537 415) AS TRUSTEE OF THE ATSIKBASIS FAMILY SETTLEMENT NO. 2
First Defendant/First Cross-Plaintiff

MANUEL ATSIKBASIS
Second Defendant/Second Cross-Plaintiff

MARIA ATSIKBASIS
Third Defendant/Third Cross-Plaintiff

FOTINA ATSIKBASIS
Fourth Defendant/Fourth Cross-Plaintiff

HELEN ATSIKBASIS-STAMATELOPOULOS
Fifth Defendant/Fifth Cross-Plaintiff

PETER ATSIKBASIS
Sixth Defendant/Sixth Cross-Plaintiff

NICHOLAS ATSIKBASIS
Seventh Defendant/Seventh Cross-Plaintiff

MANUEL ATSIKBASIS AND MARIA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE MANUEL ATSIKBASIS FAMILY SUPERANNUATION FUND
Eighth Defendant/Eighth Cross-Plaintiff

NICHOLAS ATSIKBASIS AND FOTINA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE NICHOLAS ATSIKBASIS FAMILY SUPERANNUATION FUND
Ninth Defendant/Ninth Cross-Plaintiff

SPIROS ATSIKBASIS, MARIA ATSIKBASIS, PANAGIOTIS (PETER) ATSIKBASIS AND AIKATERINI ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE PETER & KATHY ATSIKBASIS SUPERANNUATION FUND
Tenth Defendant/Tenth Cross-Plaintiff

MESSARIUS NOMINEES PTY LTD (ACN 100 537 442) AS TRUSTEE OF THE MANUEL ATSIKBASIS FAMILY TRUST NO. 2
Eleventh Defendant/Eleventh Cross-Plaintiff

NICHOLAS ATSIKBASIS AND FOTINA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE FOTINA ATSIKBASIS FAMILY TRUST
Twelfth Defendant/Twelfth Cross-Plaintiff

MACOBU NOMINEES PTY LTD (ACN 100 537 460) AS TRUSTEE OF THE SPIROS ATSIKBASIS FAMILY TRUST NO. 2
Thirteenth Defendant/Thirteenth Cross-Plaintiff

LINCOLN ENGINEERS PTY LTD (ACN 007 812 713)
Fourteenth Defendant

RANKINE SOLICITORS
First Cross-Defendant

RANKINE TUCKER LAWYERS
Second Cross-Defendant

FOX TUCKER LAWYERS
Third Cross-Defendant

MERCHANT ACCOUNTING PARTNERS PTY LTD
Fourth Cross-Defendant

JUDGE:	BESANKO J
DATE:	25 SEPTEMBER 2013
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an interlocutory application by the cross-plaintiffs for orders in terms of paragraphs 3 and 4 of the cross-plaintiffs’ application dated 10 September 2013.  The order sought in paragraph 4 is consequential upon the order in paragraph 3.  That is to say, if the order sought in paragraph 3 is made, then the order sought in paragraph 4 will also be made.  If the order in paragraph 3 is refused, then the order in paragraph 4 will also be refused. 

2. In support of the application, the cross-plaintiffs relied on an affidavit of Peter James Jackson, sworn on 10 September 2013, and an outline of submissions dated 24 September 2013.  The cross-defendants oppose the application insofar as it relates to what the fourth cross-defendant described in its submissions dated 25 September 2013 as the new Macobu claim (see paragraph 1.3).  As I understand it, the new Macobu claim is set out in paragraphs 113A to 113BG in the proposed second amended statement of cross-claim (see annexure PJJ20 to the affidavit of Mr Jackson, sworn on 10 September 2013).  The first to third cross-defendants rely on an affidavit sworn by Amanda Louise Adamson on 24 September 2013.  The fourth cross-defendant relies on an affidavit of Joseph Robert Henderson, sworn on 25 September 2013, and the written submissions previously referred to.  I have also heard submissions from counsel today. 

3. The plaintiffs have indicated that they do not oppose the application, providing it does not imperil the trial date. The cross-defendants submit that the new Macobu claim does not fall within the terms of rule 15.01(b) of the Federal Court Rules 2011 (Cth). In other words, they submit that it raises a claim for relief that is not related to the subject of the proceeding. I do not need to consider this argument because I am able to decide the application by reference to discretionary considerations.

4. I have taken into account the matters set out in the written submissions and the oral submissions of counsel today.  In my opinion, the orders sought in paragraphs 3 and 4 of the cross-plaintiffs’ interlocutory application should be refused in relation to the new Macobu claim.  In my opinion, there is a substantial risk that the trial date, at least in relation to the cross-plaintiffs and cross-defendants, would have to be vacated if the orders were to be made.  That risk arises in a context where there is no express explanation by the cross-plaintiffs of the reasons why the new Macobu claim was not introduced earlier.  In those circumstances, I consider it appropriate to refuse the orders in paragraphs 3 and 4 in relation to the new Macobu claim.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:
Dated:        26 September 2013