Vintage Developments Pty Limited v GHD Pty Limited (No 2) [2006] FCA 1437

FEDERAL COURT OF AUSTRALIA

Vintage Developments Pty Limited v GHD Pty Limited (No 2) [2006] FCA 1437 PRACTICE AND PROCEDURE – application to amend pleadings – capacity of applicant – acts as trustee rather than on its own behalf – leave to amend granted – whether "otherwise order" provision of O 13 r 3A applies – amendment pre-dates expiry of limitation period – application to substitute applicant for incoming trustee pursuant to O 6 r 10(2) and O 6 r 11(1)(d) – substitution or addition of party – interest or liability not yet passed to incoming trustee – leave refused Federal Court Rules O 6 r 10, O 6 r 11, O 13 r 2, O13 r 3A Jennings v Credit Corp Australia Pty Ltd (2000) 48 NSWLR 709 cited Vintage Developments Pty Limited v GHD Pty Limited [2006] FCA 531 cited Worrell v Westpac Banking Corporation (1994) 51 FCR 304 cited Yorkshire Regional Health Authority v Fairclough Building Ltd [1996] 1 All ER 519 cited VINTAGE DEVELOPMENTS PTY LIMITED (ACN 067 567 006) AND ERROL INVESTMENTS PTY LIMITED (ACN 001 183 277) v GHD PTY LIMITED (ACN 008 488 373), HUNTER VALLEY ESTATES PTY LTD (ACN 010 857 717) AND GRANT HEATON JOHNSTON NSD 1262 OF 2005

BENNETT J

30 OCTOBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1262 OF 2005

BETWEEN: VINTAGE DEVELOPMENTS PTY LIMITED

(ACN 067 567 006)

First Applicant

ERROL INVESTMENTS PTY LIMITED (ACN 001 183 277)

Second Applicant

AND: GHD PTY LIMITED (ACN 008 488 373)

First Respondent / Cross–Claimant

HUNTER VALLEY ESTATES PTY LTD (ACN 010 857 717)

Second Respondent / Cross–Respondent

GRANT HEATON JOHNSTON

Third Respondent

JUDGE: BENNETT J DATE OF ORDER: 30 OCTOBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Leave is granted to the applicants, pursuant to Order 13 rules 2(1), (2) and (6) of the Federal Court Rules, to amend the further amended statement of claim and the application in terms of the draft second further amended statement of claim and the draft further amended application exhibited to the affidavit of Mark Desmond Chapple sworn on 11 September 2006 at pages 1 to 52 of exhibit "MDC-4". 2. The costs of the applicants' notice of motion dated 11 September 2006 are reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA