FEDERAL COURT OF AUSTRALIA Grant-Taylor v Babcock & Brown Limited (In Liquidation) (No 2) [2014] FCA 660 Citation: Grant-Taylor v Babcock & Brown Limited (In Liquidation) (No 2) [2014] FCA 660 Parties: ANDREW GRANT-TAYLOR, CRAIGELLACHIE PTY LTD ACN 065 937 966, NIELMA GRANT-TAYLOR, ANDREW CASEY THAM, BRUNO NERI, CHARMAINE MARY NERI, CAROLYN JOY KELMAR, CHARLES JAMES LEOTTA, DANIEL FRANJIC, DANIEL RAMLU, SAROJINI RAMLU, ENORE QUERIN, MARIA QUERIN, JOANNE YACOEL, ERIC YACOEL, ERNEST MICHAEL REAVELL, EWEN MCPHERSON, GERRY PETER O'HEHIR, GRAEME CUCEUL, JOHN CHRISTOPHER PARISOTTO, JUDITH MAE NGUYEN, KEVIN EDWARD CROSLAND, LYNDSEY JOAN CROSLAND, LAGBAIL PTY LTD ACN 010 395 632, LESLIE GEORGE MILLER, MARIA GIULIA FATIGUSO, NANCY LAMBROPOULOS, PAUL ROBERT HACK, RONALD MCDERMOTT, STEPHEN DEW, RIKA DEW, STEVE CONTOGIANNIS, TERENCE MCDONALD, FLEUR FANSELOW, TERRY JOHN BORLAND, WAYNE JAMES FOOTE, PAULINE FOOTE, G HARVEY NOMINEES PTY LTD ACN 001 021 236, GRAEME LESLIE LAIDLER, JUNE ISOBEL LAIDLER, GRAHAM KENNETH GIRDLER, ROBYN ANN GIRDLER, LAURENT LUCIEN BORDES, CECILE MADELEINE BORDES, MUSTAFA FIKRET, GUNSEL FIKRET, NEVILLE ALLAN LAKE, JANET MARY LAKE, NEWKS INVESTMENTS PTY LIMITED ACN 001 426 348, PETER ROBERT MACMORRAN, IRENE VALENTINE MACMORRAN, S HARVEY NOMINEES PTY LIMITED ACN 123 497 334, YOOGALU PTY LTD ACN 002 269 132, BRENDAN CHRISTOPHER TAYLOR , MARIANA TAYLOR, RICHARD TERANCE GOLDBURG, CHRISTINE ROSE SHEARING, WILLIAM MATTHEW DUNSTAN, ROSEMARY JANE DUNSTAN, BENJAMIN KARL RUDZYN, CHRISTOPHER JOHN GARVAN, JAMES BARTHOLOMEW WIRTH, JAMES DOUGLAS HAIG MUIR, JOSEPH RUDZYN, SUSAN RUDZYN, PETER BRUCE RIES, PETER RIES SUPERANNUATION PTY LTD ACN 123 435 101, REMY SAGE, SAMUEL RUDZYN, ROBYN RUDZYN, WILLIAM ROBERT ECCLESTON, GEORGE DOUGLAS, MICHAEL GRAHAM SHIELDS, AMANDA JOY SHIELDS, MICHAEL MATTHEW MOORE, ANTHONY JOHN THOMAS MOORE and WEIDONG CHEN v BABCOCK & BROWN LIMITED (IN LIQUIDATION) ACN 108 614 955 and DAVID LOMBE File number: NSD 2070 of 2012 Judge: PERRAM J Date of judgment: 13 June 2014 Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 cited Grant-Taylor v Babcock & Brown Limited (In Liquidation) (No 1) [2014] FCA 437 cited Date of hearing: 13 June 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 10 Counsel for the Plaintiffs: Mr R White Solicitor for the Plaintiffs: Thomas Booler & Co Counsel for the Defendants: Mr J Lockhart SC and Mr J Hutton Solicitor for the Defendants: Ashurst Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2070 of 2012 BETWEEN: ANDREW GRANT-TAYLOR First Plaintiff CRAIGELLACHIE PTY LTD ACN 065 937 966 Second Plaintiff NIELMA GRANT-TAYLOR Third Plaintiff ANDREW CASEY THAM Fourth Plaintiff BRUNO NERI Fifth Plaintiff CHARMAINE MARY NERI Sixth Plaintiff CAROLYN JOY KELMAR Seventh Plaintiff CHARLES JAMES LEOTTA Eighth Plaintiff DANIEL FRANJIC Ninth Plaintiff DANIEL RAMLU Tenth Plaintiff SAROJINI RAMLU Eleventh Plaintiff ENORE QUERIN Twelfth Plaintiff MARIA QUERIN Thirteenth Plaintiff JOANNE YACOEL Fourteenth Plaintiff ERIC YACOEL Fifteenth Plaintiff ERNEST MICHAEL REAVELL Sixteenth Plaintiff EWEN MCPHERSON Seventeenth Plaintiff GERRY PETER O'HEHIR Eighteenth Plaintiff GRAEME CUCEUL Nineteenth Plaintiff JOHN CHRISTOPHER PARISOTTO Twentieth Plaintiff JUDITH MAE NGUYEN Twenty-First Plaintiff KEVIN EDWARD CROSLAND Twenty-Second Plaintiff LYNDSEY JOAN CROSLAND Twenty-Third Plaintiff LAGBAIL PTY LTD ACN 010 395 632 Twenty-Fourth Plaintiff LESLIE GEORGE MILLER Twenty-Fifth Plaintiff MARIA GIULIA FATIGUSO Twenty-Sixth Plaintiff NANCY LAMBROPOULOS Twenty-Seventh Plaintiff PAUL ROBERT HACK Twenty-Eighth Plaintiff RONALD MCDERMOTT Twenty-Ninth Plaintiff STEPHEN DEW Thirtieth Plaintiff RIKA DEW Thirty-First Plaintiff STEVE CONTOGIANNIS Thirty-Second Plaintiff TERENCE MCDONALD Thirty-Third Plaintiff FLEUR FANSELOW Thirty-Fourth Plaintiff TERRY JOHN BORLAND Thirty-Fifth Plaintiff WAYNE JAMES FOOTE Thirty-Sixth Plaintiff PAULINE FOOTE Thirty-Seventh Plaintiff G HARVEY NOMINEES PTY LTD ACN 001 021 236 Thirty-Eighth Plaintiff GRAEME LESLIE LAIDLER Thirty-Ninth Plaintiff JUNE ISOBEL LAIDLER Fortieth Plaintiff GRAHAM KENNETH GIRDLER Forty-First Plaintiff ROBYN ANN GIRDLER Forty-Second Plaintiff LAURENT LUCIEN BORDES Forty-Third Plaintiff CECILE MADELEINE BORDES Forty-Fourth Plaintiff MUSTAFA FIKRET Forty-Fifth Plaintiff GUNSEL FIKRET Forty-Sixth Plaintiff NEVILLE ALLAN LAKE Forty-Seventh Plaintiff JANET MARY LAKE Forty-Eighth Plaintiff NEWKS INVESTMENTS PTY LIMITED ACN 001 426 348 Forty-Ninth Plaintiff PETER ROBERT MACMORRAN Fiftieth Plaintiff IRENE VALENTINE MACMORRAN Fifty-First Plaintiff S HARVEY NOMINEES PTY LIMITED ACN 123 497 334 Fifty-Second Plaintiff YOOGALU PTY LTD ACN 002 269 132 Fifty-Third Plaintiff BRENDAN CHRISTOPHER TAYLOR Fifty-Fourth Plaintiff MARIANA TAYLOR Fifty-Fifth Plaintiff RICHARD TERANCE GOLDBURG Fifty-Sixth Plaintiff CHRISTINE ROSE SHEARING Fifty-Seventh Plaintiff WILLIAM MATTHEW DUNSTAN Fifty-Eighth Plaintiff ROSEMARY JANE DUNSTAN Fifty-Ninth Plaintiff BENJAMIN KARL RUDZYN Sixtieth Plaintiff CHRISTOPHER JOHN GARVAN Sixty-First Plaintiff JAMES BARTHOLOMEW WIRTH Sixty-Second Plaintiff JAMES DOUGLAS HAIG MUIR Sixty-Third Plaintiff JOSEPH RUDZYN Sixty-Fourth Plaintiff SUSAN RUDZYN Sixty-Fifth Plaintiff PETER BRUCE RIES Sixty-Sixth Plaintiff PETER RIES SUPERANNUATION PTY LTD ACN 123 435 101 Sixty-Seventh Plaintiff REMY SAGE Sixty-Eighth Plaintiff SAMUEL RUDZYN Sixty-Ninth Plaintiff ROBYN RUDZYN Seventieth Plaintiff WILLIAM ROBERT ECCLESTON Seventy-First Plaintiff GEORGE DOUGLAS Seventy-Second Plaintiff MICHAEL GRAHAM SHIELDS Seventy-Third Plaintiff AMANDA JOY SHIELDS Seventy-Fourth Plaintiff MICHAEL MATTHEW MOORE Seventy-Fifth Plaintiff ANTHONY JOHN THOMAS MOORE Seventy-Sixth Plaintiff WEIDONG CHEN Seventy-Seventh Plaintiff AND: BABCOCK & BROWN LIMITED (IN LIQUIDATION) ACN 108 614 955 First Defendant DAVID LOMBE Second Defendant JUDGE: PERRAM J DATE OF ORDER: 13 June 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicants' application for leave to amend their further amended points of claim be dismissed. 2. The applicants pay the respondents' costs of the amendment application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2070 of 2012 BETWEEN: ANDREW GRANT-TAYLOR First Plaintiff CRAIGELLACHIE PTY LTD ACN 065 937 966 Second Plaintiff NIELMA GRANT-TAYLOR Third Plaintiff ANDREW CASEY THAM Fourth Plaintiff BRUNO NERI Fifth Plaintiff CHARMAINE MARY NERI Sixth Plaintiff CAROLYN JOY KELMAR Seventh Plaintiff CHARLES JAMES LEOTTA Eighth Plaintiff DANIEL FRANJIC Ninth Plaintiff DANIEL RAMLU Tenth Plaintiff SAROJINI RAMLU Eleventh Plaintiff ENORE QUERIN Twelfth Plaintiff MARIA QUERIN Thirteenth Plaintiff JOANNE YACOEL Fourteenth Plaintiff ERIC YACOEL Fifteenth Plaintiff ERNEST MICHAEL REAVELL Sixteenth Plaintiff EWEN MCPHERSON Seventeenth Plaintiff GERRY PETER O'HEHIR Eighteenth Plaintiff GRAEME CUCEUL Nineteenth Plaintiff JOHN CHRISTOPHER PARISOTTO Twentieth Plaintiff JUDITH MAE NGUYEN Twenty-First Plaintiff KEVIN EDWARD CROSLAND Twenty-Second Plaintiff LYNDSEY JOAN CROSLAND Twenty-Third Plaintiff LAGBAIL PTY LTD ACN 010 395 632 Twenty-Fourth Plaintiff LESLIE GEORGE MILLER Twenty-Fifth Plaintiff MARIA GIULIA FATIGUSO Twenty-Sixth Plaintiff NANCY LAMBROPOULOS Twenty-Seventh Plaintiff PAUL ROBERT HACK Twenty-Eighth Plaintiff RONALD MCDERMOTT Twenty-Ninth Plaintiff STEPHEN DEW Thirtieth Plaintiff RIKA DEW Thirty-First Plaintiff STEVE CONTOGIANNIS Thirty-Second Plaintiff TERENCE MCDONALD Thirty-Third Plaintiff FLEUR FANSELOW Thirty-Fourth Plaintiff TERRY JOHN BORLAND Thirty-Fifth Plaintiff WAYNE JAMES FOOTE Thirty-Sixth Plaintiff PAULINE FOOTE Thirty-Seventh Plaintiff G HARVEY NOMINEES PTY LTD ACN 001 021 236 Thirty-Eighth Plaintiff GRAEME LESLIE LAIDLER Thirty-Ninth Plaintiff JUNE ISOBEL LAIDLER Fortieth Plaintiff GRAHAM KENNETH GIRDLER Forty-First Plaintiff ROBYN ANN GIRDLER Forty-Second Plaintiff LAURENT LUCIEN BORDES Forty-Third Plaintiff CECILE MADELEINE BORDES Forty-Fourth Plaintiff MUSTAFA FIKRET Forty-Fifth Plaintiff GUNSEL FIKRET Forty-Sixth Plaintiff NEVILLE ALLAN LAKE Forty-Seventh Plaintiff JANET MARY LAKE Forty-Eighth Plaintiff NEWKS INVESTMENTS PTY LIMITED ACN 001 426 348 Forty-Ninth Plaintiff PETER ROBERT MACMORRAN Fiftieth Plaintiff IRENE VALENTINE MACMORRAN Fifty-First Plaintiff S HARVEY NOMINEES PTY LIMITED ACN 123 497 334 Fifty-Second Plaintiff YOOGALU PTY LTD ACN 002 269 132 Fifty-Third Plaintiff BRENDAN CHRISTOPHER TAYLOR Fifty-Fourth Plaintiff MARIANA TAYLOR Fifty-Fifth Plaintiff RICHARD TERANCE GOLDBURG Fifty-Sixth Plaintiff CHRISTINE ROSE SHEARING Fifty-Seventh Plaintiff WILLIAM MATTHEW DUNSTAN Fifty-Eighth Plaintiff ROSEMARY JANE DUNSTAN Fifty-Ninth Plaintiff BENJAMIN KARL RUDZYN Sixtieth Plaintiff CHRISTOPHER JOHN GARVAN Sixty-First Plaintiff JAMES BARTHOLOMEW WIRTH Sixty-Second Plaintiff JAMES DOUGLAS HAIG MUIR Sixty-Third Plaintiff JOSEPH RUDZYN Sixty-Fourth Plaintiff SUSAN RUDZYN Sixty-Fifth Plaintiff PETER BRUCE RIES Sixty-Sixth Plaintiff PETER RIES SUPERANNUATION PTY LTD ACN 123 435 101 Sixty-Seventh Plaintiff REMY SAGE Sixty-Eighth Plaintiff SAMUEL RUDZYN Sixty-Ninth Plaintiff ROBYN RUDZYN Seventieth Plaintiff WILLIAM ROBERT ECCLESTON Seventy-First Plaintiff GEORGE DOUGLAS Seventy-Second Plaintiff MICHAEL GRAHAM SHIELDS Seventy-Third Plaintiff AMANDA JOY SHIELDS Seventy-Fourth Plaintiff MICHAEL MATTHEW MOORE Seventy-Fifth Plaintiff ANTHONY JOHN THOMAS MOORE Seventy-Sixth Plaintiff WEIDONG CHEN Seventy-Seventh Plaintiff AND BABCOCK & BROWN LIMITED (IN LIQUIDATION) ACN 108 614 955 First Defendant DAVID LOMBE Second Defendant JUDGE: PERRAM J DATE: 13 June 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicants apply to amend their further amended points of claim by the addition of a further ground of non-disclosure. The non-disclosure relates to an allegation that between August 2008 and January 2009, Babcock & Brown Limited failed to disclose to the ASX that it expected the group's earning results for the year ended 31 December 2008 to be materially different from its results and forecasts published in 2008. The facts, matters and circumstances which underlie that proposed allegation appear to have become known to the solicitors acting for the applicants on or around the middle of May 2014. 2 They came to the attention of the applicants' solicitors following the inspection of documents pursuant to orders which had been made by me at an earlier time. In turn, those orders were made by me consequent upon an earlier successful amendment application by the applicants in which I permitted them to raise, over objection, a number of fresh grounds of non-disclosure: see Grant-Taylor v Babcock & Brown Limited (In Liquidation) (No 1) [2014] FCA 437. 3 At the time I permitted those amendments to be raised I noted that there had been, relevantly, delay by the applicants in bringing forth those amendments. I did so as part of a process of reasoning in which in the course of considering whether the amendment should be allowed I weighed, in terms of fairness, the respective conduct of the parties. I found that, at least when it came to the question of attributing blame for what had occurred, blame was to be, so far as it was relevant, laid at the feet of the applicants rather than the respondents. In consequence of allowing the amendment, I made a series of timetabling orders which imposed upon the respondents, but also the applicants, a reasonable degree of hardship with a view to ensuring that the trial would be able to commence with an estimate of three days on Monday 14 July 2014. 4 Since that process has been embarked upon, there have been further debates between the parties as to their ability to meet the trial date with a full examination of the expert evidence. This afternoon I have adjusted the timetable which was in place to afford the applicants yet another indulgence in the form of giving them more time to put on some unexpected, but essential, evidence from a Professor Frino. If I were now to permit the amendments which are suggested it seems to me that it is very unlikely that those trial dates would be able to be achieved in a fashion which would be fair to the respondents. 5 I have already exposed the respondents to considerable hardship in terms of making them deal with amendments on a short timetable and compelling them over objection to deal in an extremely expedited fashion with the evidence of Professor Frino. It would, in my opinion, be quite unfair to allow this case now to be raised at the heel of the hunt. More is this so in circumstances where, as I have already indicated, the blame for the delay in bringing forth the first set of amendments lies in the applicants' camp. If the previous amendments had occurred at an earlier time, the documents which were unearthed by Mr Joukhador in the middle of May would have come to light earlier and this application itself would have been made earlier. 6 Against what seem to me to be fairly powerful considerations against granting the amendment, Mr White of counsel, appearing for the applicants, raised three matters. The first was that this issue only arose because the documents in question were in the possession of the liquidators which were said in his submission to make it an unusual circumstance. I do not accept that litigation in which liquidators are sued and where typically the documents are in the possession of a liquidator or, alternatively, a receiver, is a particularly special feature of litigation. This is particularly so in this case where the applicants are represented by people who are plainly cognisant of the difficulties of this kind of litigation and who are, in my opinion, more than able to navigate the difficulties which arise. 7 Secondly, it was put that the point which was sought to be raised was a 'big point'. I am prepared to accept that the point is an arguable one and obviously that is a matter which is to be taken into account. I decline to form a view as to whether it is an extremely strong point or a very strong point, there being an inability on an application such as the present for me to form a view about that matter. 8 The final matter which was raised was perhaps the most substantive of the points. When I granted the applicants leave to amend on 16 April 2014, one of the circumstances which impelled me to that decision was the fact that this case is, perhaps for want of a better word, a test case and a number of other cases are lined up behind it. 9 I was persuaded at paragraphs 25 and 26 of my earlier reasons that that quality in the litigation meant that if I had not granted those amendments, it would simply mean that the same point would eventually be litigated in a new proceeding or in the other cases which are pending. That is a powerful consideration and it was sufficient on the last occasion to persuade me that the amendments ought to be allowed. However, there were a number of other factors involved in the last decision, one of which was the unanimous view of the parties at that time that allowing the amendments would not prejudice the trial date. I think the situation has rather moved on since then. 10 Regardless of what the parties think about the liability of the trial date at this point, in my opinion, to allow these amendments runs with it an extremely strong risk that the trial date will be lost. It will also expose the respondents to a considerable unfairness, one to which I do not think they ought to be burdened with at this stage of litigation. The principles which govern the granting of applications such as the present are well known and are specified by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. I take those into account. At the end of the day, it is a question of attempting to do justice between the parties as best one can. In my opinion, the applicants have had enough time to put their case in order and given that the trial is only a very short period of time off I do not think it would be just to permit the amendment to be raised at this late piece. For that reason, I dismiss the application with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 20 June 2014