Terranora Leisuretime Resort Management Ltd (In Liquidation) v Harris [2004] FCA 587

FEDERAL COURT OF AUSTRALIA

Terranora Leisuretime Resort Management Ltd (In Liquidation) v Harris [2004] FCA 587 PRACTICE AND PROCEDURE – application to amend statement of claim – leave to amend – delay in bringing application – seriousness of allegations – whether other party prejudiced in being able to meet the claims – whether facts relevant to the claims are raised for the first time – identification of evidence relied upon to support new allegations as a condition of leave to amend PRACTICE AND PROCEDURE – security for costs – application – where applicant unable to pay the costs of respondents if unsuccessful - whether order for security is required if able to seek an order directly against the fund provider of the applicant's litigation PRACTICE AND PROCEDURE – assessment of liquidator's costs – application for separate trial – whether issue of the quantum of liquidator's costs needs to be the subject of evidence at trial – orders for assessment able to be sought in the event that judgment with respect to the issue of quantum is obtained PRACTICE AND PROCEDURE – witness statements – extension of time to file and serve TERRANORA LEISURETIME RESORT MANAGEMENT LTD (IN LIQUIDATION) v ERNEST GEORGE HARRIS AND WILSON JOSEPH WILDE Q28 of 2003 KIEFEL J BRISBANE (VIA VIDEO LINK FROM SYDNEY) 11 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q28 OF 2003

BETWEEN: TERRANORA LEISURETIME RESORT MANAGEMENT LTD (IN LIQUIDATION) ACN 003 020 693

APPLICANT

AND: ERNEST GEORGE HARRIS AND WILSON JOSEPH WILDE

RESPONDENTS

JUDGE: KIEFEL J

DATE OF ORDER: 11 MAY 2004

WHERE MADE: BRISBANE (VIA VIDEO LINK FROM SYDNEY)

THE COURT ORDERS THAT: 1. The applicant have leave to amend its amended statement of claim in the terms of the draft handed to the Court and the respondents at the hearing on 7 May 2004. 2. As a condition of that leave the applicant is to advise the respondents by 24 May 2004 of the evidence relied upon to support its new allegations. 3. The applicant is to file and serve its further amended statement of claim by 14 May 2004. 4. The applicant is to provide further security for the trial costs of the respondents in the amount of $203,742 within twenty-one (21) days of this order and in a manner to be approved by the District Registrar. 5. The respondents have an extension of time of fourteen (14) days from today's date within which to file their witness statements. THE COURT FURTHER DIRECTS THAT : 6. The issue of the applicant's liquidator's costs are not to be the subject of evidence at the hearing to commence on 12 July 2004. 7. The parties are to seek necessary orders and directions with respect to that issue on the giving of judgment on the other issues. THE COURT FURTHER ORDERS THAT: 8. The applicant is to pay the costs of the application for leave to amend its amended statement of claim and the costs thrown away by those amendments. 9. The applicant is to pay the respondents' costs on the motion for security for costs. 10. The costs of the applications for a separate trial and for directions are to be the parties costs in the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.