FEDERAL COURT OF AUSTRALIA
Waterproofing Technologies Pty Ltd v Perri [2022] FCA 714
File number: NSD 660 of 2021 Judgment of: ANDERSON J Date of judgment: 6 June 2022 Date of publication of reasons: 4 July 2022 Catchwords: PRACTICE AND PROCEDURE – application for leave to file and serve an amended statement of claim – where the proceeding involves numerous corporate and individual entities and multiple complex commercial transactions – where proceeding raises questions of fact and law in relation to pleading of a dishonest and fraudulent design under the second limb in Barnes v Addy – whether granting leave to file Amended Statement of Claim would significantly impact upon the proper preparation of the case – whether there is a reasonable basis to infer that the respondents have engaged in the alleged wrongdoing – leave to file an Amended Statement of Claim granted
PRACTICE AND PROCEDURE – application to set aside notice to produce – application allowed
PRACTICE AND PROCEDURE – application to discharge or vary freezing order – where there is no good or arguable case or exceptional circumstances which would warrant the exercise of judicial discretion to discharge the freezing orders – application dismissed
Legislation: Federal Court Rules 2011 (Cth)
Corporations Act 2001 (Cth)
Cases cited: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 636; 217 ALR 226
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82
Barnes v Addy (1874) LR 9
Construction, Forestry, Mining and Energy Union (CFMEU) v BHP Coal Pty Ltd (No 3)
Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564
Paras v Public Service Body Head of the Department of Infrastructure (No 2) [2006] FCA652; 152 IR 352
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 62 Date of hearing: 6 June 2022 Counsel for the First and Second Applicant: Mr A McInerney SC with Mr J Simpkins Solicitor for the First and Second Applicant: McCabes Lawyers Counsel for the First, Second and Third Respondent: Mr M Clarke QC with Ms V Plain Solicitor for the First, Second and Third Respondent: PCL Lawyers Counsel for the Fourth and Fifth Respondents: The Fifth and Sixth Respondents did not appear Counsel for the Sixth and Seventh Respondents: Mr H De Kock Solicitor for the Sixth and Seventh Respondents: BSP Lawyers Counsel for the Eighth Respondent: The Eighth Respondent did not appear Counsel for the Ninth Respondent: Mr L Magowan Solicitor for the Ninth Respondent: Schembri + McCluskys ORDERS
NSD 660 of 2021 BETWEEN: WATERPROOFING TECHNOLOGIES PTY LTD ACN 152 481 215 (and another named in the schedule)
First Applicant
AND: LUIGI PERRI (and others named in the schedule)
First Respondent
ORDER…
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- AGLC
- Waterproofing Technologies Pty Ltd v Perri [2022] FCA 714
- Case
- [2022] FCA 714
- Decision Date
CaseChat Overview and Summary
The court granted leave for the applicants to file an amended statement of claim, finding that the proposed amendments would not significantly impact the proper preparation of the case and that there was a reasonable basis to infer that the respondents had engaged in the alleged wrongdoing. The court considered that the additional respondents and allegations were closely related to the existing claims and that the applicants had provided sufficient information to support the proposed amendments. The court also noted that the respondents had not demonstrated that the granting of leave would cause substantial injustice or delay. Additionally, the court allowed an application to set aside notices to produce documents and dismissed an application to discharge or vary freezing orders, finding that there was no good or arguable case or exceptional circumstances to warrant the exercise of judicial discretion.
The court made several orders to facilitate the amended statement of claim and the ongoing proceedings. The applicants were granted leave to file a further amended originating process and an amended statement of claim, and additional respondents were joined to the proceeding. The court also set deadlines for service of the amended documents, discovery of documents, and filing of defences and replies. The court permitted an independent computer expert to search electronic devices and prepare a list of documents identified in accordance with varied permitted searches. The court set deadlines for respondents to identify any documents subject to privilege and to object to access by the applicants to any document identified in the list of things. The court also set deadlines for discovery of documents and further and better particulars of loss and damage and breach of duty. The court set aside notices to produce documents and ordered the parties to attend mediation and a case management hearing. All questions of costs were reserved.
Orders
Orders of the court
1. The Applicants have leave to file a Further Amended Originating Process in the form Annexure A to the interlocutory application dated 19 April 2022.
2. The Applicants have leave to file an Amended Statement of Claim in the form of Annexure B to the interlocutory application dated 19 April 2022.
3. The following parties be joined as respondents to this proceeding:
(a) Sue-Ann Perri as the Eighth Respondent;
(b) Ben Ilic as the Ninth Respondent;
(c) ITank Solutions Pty Ltd as the Tenth Respondent;
(d) CCBM Super Pty Ltd as the Eleventh Respondent; and
(e) Joshua Bruzzese as the Twelfth Respondent,
(collectively “New Respondents”).
4. Service on the Ninth Respondent is dispensed with.
5. By 15 June 2022, the Applicants serve the Further Amended Originating Process, Amended Statement of Claim on the New Respondents and this order.
6. The Applicants and First to Seventh Respondents forthwith provide to the New Respondents, upon written request, copies of:
(a) the discovery provided to date; and
(b) Exhibit A1 being tendered in Court on 6 June 2022.
7. By 18 June 2022, the Ninth Respondent shall issue any request for further and better particulars of the Amended Statement of Claim.
8. By 4 pm on 18 July 2022, the Respondents file and serve a Defence to the Amended Statement of Claim.
9. By 4 pm on 1 August 2022, the Applicants file and serve any Reply.
10. The Independent Computer Expert be permitted to search all devices (or electronic copies) obtained in accordance with the search orders executed on 7 July 2021 (Search Orders) to identify any document/information falling within the scope of Annexure C to the interlocutory application dated 19 April 2022 (Varied Permitted Searches), following completion of which the Independent Computer Expert will prepare and provide to the respondents a list of documents/information identified in accordance with the Varied Permitted Searches identifying the identity, kind, ownership and location details of all documents/information (Second Schedule of Listed Things).
11. Within 10 business days of receipt by the Respondents of the Second Schedule of Listed Things, the Respondents are to:
(a) identify any documents/information contained in the Second Schedule of Listed Things potentially the subject of any claim for privilege; and
(b) in respect of any such documents/information identified in accordance with Order 11(a) above, the respondents and their respective legal representatives will be permitted access by the Independent Computer Expert to copies of those documents/information for the purposes of them reviewing and identifying any information/documents in respect of which any respondent may wish to make a claim for legal professional privilege, or privilege against self-incrimination, or any other privilege on which any respondent may intend to rely.
12. Within 10 business days of receipt by the Respondents of the Second Schedule of Listed Things, any Respondent who objects, on the grounds of privilege, to access by any of the Applicants to any document/information identified in the Scheduled of List Things is to:
(a) prepare an affidavit setting out, with reference to each document, the grounds of objection (Privilege Objection Affidavit) and deliver it to the Court in a sealed envelope; and
(b) file and serve on each other party a separate affidavit setting out the basis of the objections and any written submissions any respondent intends to rely upon in support of its objections, including identifying in that separate affidavit (without limitation):
(i) the date of each document;
(ii) the parties to each document to the extent it is a communication;
(iii) the substance of the document/communication; and
(iv) the basis upon which the document/communication is said to attract legal professional privilege;
(v) any facts upon which any respondent relies to found the claim for privilege;
(Privileged Documents).
13. The Privilege Objection Affidavit must not be opened except as directed by the Court.
14. Determination of any privilege objections be determined by a Registrar of the Court.
15. By 4 July 2022, the Respondents (including the New Respondents) provide discovery of the documents described in the Annexure to the Amended Interlocutory Process.
16. By 4 July 2022, the Applicants provide further and better particulars of:
(a) their loss and damage as pleaded at paragraphs 38, 41, 44, 47, 51, 54, 57, 61, 106, 107 and 108 in the Amended Statement of Claim;
(b) breach of duty of the Respondents in respect of the period from 1 July 2018 to 6 July 2021;
(c) the Ninth Respondent’s request for further and better particulars.
17. By 4 July 2022, the Applicants provide standard discovery of documents in relation to loss their loss and damage as pleaded at paragraph 38, 41, 44, 47, 51, 54, 57, 61, 106, 107 and 108 in the Amended Statement of Claim by 4 July 2022.
18. The Notices to Produce dated 17 January 2022 served upon the First, Second and Third Respondents respectively, be set aside.
19. By 30 November 2022, the parties attend a mediation, in person, before a Registrar of the Court.
20. The proceeding be listed for a case management hearing at 2.15pm on 15 December 2022.
21. Reserve all questions of costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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