Supreme Court New South Wales Medium Neutral Citation: Rosenbaum v Baidarman [2020] NSWSC 699 Hearing dates: 02 June 2020 Date of orders: 03 June 2020 Decision date: 05 June 2020 Jurisdiction: Equity Before: Williams J Decision: Grant leave to the cross-defendants to make certain uncontested amendments to the Defence to Amended Cross-Claim. Otherwise, leave refused. Catchwords: PRACTICE AND PROCEDURE – applications – leave to amend pleadings – no issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56–58, 64 Uniform Civil Procedure Rules 2005 (NSW), r 20.14 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Category: Procedural and other rulings Parties: Eduard Rosenbaum (First Plaintiff/First Cross-Defendant) Ironwell Pty Ltd (Second Plaintiff/Second Cross-Defendant)) Jacob Baidarman (Defendant/Cross-Claimant) Alla Rosenbaum (Third Cross-Defendant) Tanya Rosenbaum (Fourth Cross-Defendant) Ella Baidarman (Fifth Cross-Defendant) Dabjade Pty Ltd (Sixth Cross-Defendant) Representation: Counsel: Ms F Rogers (Plaintiffs/First to Fourth Cross-Defendants) Mr D A Smallbone (Defendant/Cross-Claimant) Solicitors: McNamee Legal (Plaintiffs/First to Fourth Cross Defendants) DCE Lawyers (Defendant/Cross-Claimant) Submitting Appearances: Tanya Rosenbaum (Fifth Cross-Defendant) Dabjade Pty Ltd (Sixth Cross-Defendant) File Number(s): 2012/301100 Publication restriction: N/A Judgment Introduction 1. During the hearing of this matter, the first to fourth cross-defendants formulated and provided to the cross-claimant and to my Associate certain proposed amendments to their Defence to Amended Cross-Claim on 31 May 2020. The application was made informally, in that it was not the subject of a notice of motion or any affidavit explaining the reasons for the proposed amendments or the timing of the application for leave to amend. 2. On 2 June 2020, the cross-claimant informed the Court that some of those amendments were not opposed and other amendments were opposed by the cross-claimant. The Court heard oral submissions from the cross-claimants and the first to fourth cross-defendants that day concerning whether leave to amend should be granted in respect of the amendments opposed by the cross-claimant. 3. I reserved my decision in respect of the application for leave to amend and, on 3 June 2020, granted leave to the first to fourth cross-defendants to make those amendments that were not opposed by the cross-claimant and refused leave to amend in respect of the balance of the proposed amendments. These are my reasons for that decision. The parties, the pleadings and the history of this proceeding 1. It is necessary to describe the parties to the proceedings, the issues in dispute on the existing pleadings as at 2 June 2020 and the history of the proceedings to date before considering the scope of the proposed amendments, their relationship to the existing pleadings and the likely impact on the ongoing trial of this matter if leave to amend were granted in respect of the amendments opposed by the cross-claimant. 2. Mr Eduard Rosenbaum is the first plaintiff and first cross-defendant in this proceeding (Mr Rosenbaum). Mr Jacob Baidarman is the defendant and cross-claimant (Mr Baidarman). Mr Rosenbaum and Mr Baidarman commenced a property development business in partnership in about 1987 (the Partnership). [1] It is common ground that it was a term of the partnership agreement that each partner would contribute equally to the Partnership and would share equally in the profits or losses of the Partnership. [2] 3. Ironwell Pty Ltd is the second plaintiff and second cross-defendant (Ironwell) in this proceeding. Since about November 1991, Mr Rosenbaum and his wife, Mrs Alla Rosenbaum (Mrs Rosenbaum), have been the sole directors and shareholders of Ironwell. Mrs Rosenbaum is the third cross-defendant in this proceeding. 4. Ironwell is also the trustee of the Ironwell Employees Superannuation Fund (Ironwell Super). [3] It is common ground that, at all material times, the beneficiaries of Ironwell Super were Mr and Mrs Rosenbaum and the fourth cross-defendant, Tanya Rosenbaum (who is the daughter of Mr and Mrs Rosenbaum). [4] 5. It is convenient to refer to Mr and Mrs Rosenbaum, Ironwell and Tanya Rosenbaum collectively as the Rosenbaum cross-defendants. 6. The sixth cross-defendant, Dabjade Pty Ltd (Dabjade) is the trustee of the Baidarman Superannuation Fund (Baidarman Super). [5] It is common ground that, at all material times, the beneficiaries of Baidarman Super were Mr Baidarman and his wife, Mrs Ella Baidarman, who is the fifth cross-defendant (Mrs Baidarman). [6] 7. It is not in dispute that: [7] 1. the Omega Unit Trust and the IPD Trust were each established in 1997; 2. Innovative Property Developments Pty Ltd (under a previous name) was appointed as the trustee of each trust in 1997; 3. the beneficiaries of each trust were Ironwell (as trustee of Ironwell Super) and Dabjade (as trustee of Baidarman Super); and 4. the interests of Ironwell and Dabjade in the Omega Unit Trust were, and are, held as units in that trust; 5. in March 2006, Innovative Property Developments Pty Ltd was removed as trustee of the Omega Unit Trust and replaced by Excelsea Pty Ltd (Excelsea). Excelsea remained the trustee of both trusts, until it was deregistered by ASIC in 2014; and 6. the only directors of Excelsea at all material times were Mr Rosenbaum and Mr Baidarman. 1. It is common ground that, during 2006, Mr Rosenbaum and Mr Baidarman undertook a process that each of them refer to as a "reconciliation" of their respective contributions to and withdrawals from the Partnership since its inception (the 2006 Reconciliation). The 2006 Reconciliation was not complete or final, and neither party relies on it as a settled account. It was subject to various matters identified as outstanding at the time, and each of Mr Rosenbaum and Mr Baidarman has subsequently identified certain additional matters concerning their respective contributions and withdrawals to the Partnership that they say were not addressed, or not addressed adequately, in the 2006 Reconciliation. [8] 2. Subject to those qualifications, Mr Rosenbaum and Mr Baidarman calculated during the 2006 Reconciliation process that: [9] 1. Mr Rosenbaum's advances to the Partnership since its inception exceeded his withdrawals from the Partnership by a total amount of $110,000; and 2. Mr Baidarman's advances to the Partnership exceeded his withdrawals from the Partnership by a total amount of $493,792. 1. It is common ground that, during 2009, Mr Rosenbaum and Mr Baidarman were paid the amounts of $110,000 and $493,792 respectively. [10] 2. Mr Baidarman alleges that, in 2009: [11] 1. Ironwell (as trustee of Ironwell Super) "withdrew funds from the Omega Unit Trust pursuant to a redemption of units and/or reorganisation of the unit holdings in the Omega Unit Trust" by agreement between Excelsea, Ironwell and Dabjade; 2. as a result of that alleged withdrawal and agreement: 1. Dabjade (as trustee for Baidarman Super) held 1,437,246 units in the Omega Unit Trust; and 2. Ironwell (as trustee for Ironwell Super) held 678,740 units in the Omega Unit Trust. 1. In their Defence to Amended Cross-Claim filed on 28 November 2019 the Rosenbaum cross-defendants: [12] 1. pleaded that withdrawals totalling $603,892 had been made from the Omega Unit Trust in 2009, and that $493,792 of those funds had been paid to Mr Baidarman and $110,000 had been paid to Mr Rosenbaum on the basis of the calculations undertaken during the 2006 Reconciliation (as referred to in paragraph 12 above); 2. pleaded that those withdrawals and payments had been made at the request of Mr Baidarman; 3. pleaded that they did not know and therefore could not admit whether those withdrawals and payments had been made "pursuant to a redemption of units and/or reorganisation of the unit holdings in the Omega Unit Trust" by agreement between Excelsea, Ironwell and Dabjade; 4. pleaded that Mr Rosenbaum "had no knowledge of any adjustment of unit holdings in the Omega Unit Trust based upon these transactions"; and 5. pleaded that they did not know and therefore could not admit that, as a consequence of those withdrawals and payments, Dabjade (as trustee for Baidarman Super) held 1,437,246 units and Ironwell (as trustee for Ironwell Super) held 678,740 units in the Omega Unit Trust. 1. That Defence to Amended Cross-Claim was verified by Mr Rosenbaum. 2. It is common ground that the last period for which financial accounts were completed for the Omega Unit Trust and agreed by the directors of Excelsea is the financial year ended 30 June 2010. [13] 3. On 28 September 2010, an amount of $1,720,674.21 was withdrawn from Omega Unit Trust funds and subsequently paid to Mr Baidarman (presumably representing Dabjade as trustee of Baidarman Super) in the amount of $1,060,291.60 and to Mr Rosenbaum (presumably representing Ironwell as trustee of Ironwell Super) in the amount of $660,382.60. The parties are in dispute about the purpose for which those funds were withdrawn from Omega Unit Trust and the entitlements of each of Ironwell and Dabjade, as beneficiaries of the Omega Unit Trust, to those funds. Mr Baidarman contends that, because Dabjade (as trustee of Baidarman Super) owned 1,437,246 units and Ironwell (as trustee of Ironwell Super) owned 678,640 units in the Omega Unit Trust as at 28 September 2010, the amount of $1,720,674.21 should have been distributed by paying $1,166,297.94 to Dabjade (as trustee of Baidarman Super) and $554,401.23 to Ironwell (as trustee of Ironwell Super). [14] 4. In their Further Amended Statement of Claim and Defence to Amended Cross-Claim, the plaintiffs and the Rosenbaum cross-defendants contend (and Mr Baidarman disputes) that the amount of $1,720,674.21 was withdrawn from the Omega Unit Trust and distributed to Dabjade/Mr Baidarman and Ironwell/Mr Rosenbaum in the amounts of $1,060,291.60 and $660,382.60 respectively as part of a reconciliation undertaken to "ensure that the Ironwell Super fund and the Baidarman Superannuation fund held an equal amount of money" or to "ensure equity" after taking into account amounts that Mr Rosenbaum had withdrawn as an annuity during the period between 2005 and 2010. [15] 5. It is common ground that there are funds of the Omega Unit Trust that are yet to be distributed to the unit holders. [16] 6. In about 2010, Mr Rosenbaum and Mr Baidarman decided that they no longer wished to continue the Partnership. There are many other issues in dispute concerning specific dealings and transactions relating to (or allegedly relating to) the Partnership during the period from the late 1980s until about 2011. 7. This proceeding was commenced in 2012 and has already had a long history. The relief sought by the parties includes an order winding up the Partnership and an order for the taking of an account of all of the transactions of the Partnership and between the partners. Many disputed issues concerning the transactions of the Partnership and between partners were the subject of a reference conducted in 2016 and 2017 pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 20.14. The referee's report was adopted by the Court in part by orders made on 10 September 2018. 8. Many disputed issues concerning the Partnership remain to be determined by the Court, including whether the account should be taken as a common account or on the basis of wilful default by one of the partners, and other matters that will be relevant to the taking of accounts. Claims for relief concerning the Omega Unit Trust and the IPD Trust also remain to be determined by the Court. The matter was listed for hearing before me commencing on 25 May 2020 with an estimate of 14 days. 9. During the hearing, the plaintiffs and the Rosenbaum cross-defendants have been represented by Ms Rogers of counsel, instructed by Mr McNamee, solicitor. The defendant and cross-claimant, Mr Baidarman, has been represented by Mr Smallbone of counsel, instructed by Mr English, solicitor. 10. Mrs Baidarman and Dabjade have not been represented at the hearing. On 30 October 2019, they filed a submitting appearance stating that they submit to the making of all orders sought, and the giving of entry of judgment in respect of all claims made save as to costs. 11. The proposed amendments to the Defence to Amended Cross-Claim concern the Omega Unit Trust and the IPD Trust. 12. The parties' claims for relief on the existing pleadings as at 2 June 2020 (and at the time that the submitting appearance of Mrs Baidarman and Dabjade was filed) [17] may be summarised briefly as follows insofar as they relate to the Omega Unit Trust and the IPD Trust: 1. Mr Baidarman claims (and the Rosenbaum cross-defendants oppose) an order that the administration and execution of the Omega Unit Trust be completed by and under the direction of the Court, and all declarations and orders necessary to be made to cause the beneficiaries' entitlements therein to vest and be ascertained and paid; [18] 2. in the alternative, Mr Baidarman claims (and the Rosenbaum cross-defendants do not oppose) an order that a new trustee be appointed to the Omega Unit Trust; [19] 3. Mr Baidarman also claims (and the Rosenbaum cross-defendants oppose) an order that an account be taken of the transactions of the Omega Unit Trust since 1 July 2010, including an enquiry into the respective entitlements of unitholders therein in respect of the sum of $1,720,674.21 paid on 28 September 2010 and the allowance to the Baidarman Superannuation Fund of an adjustment for overpayment therefrom to the Ironwell Employees Superannuation Fund; [20] 4. Mr Baidarman claims (and the Rosenbaum cross-defendants oppose) an order that the administration and execution of the IPD Trust be completed by and under the direction of the Court, and all declarations and orders necessary to be made to cause the beneficiaries' entitlements therein to vest and be ascertained and paid; [21] and 5. in the alternative to the relief referred to immediately above, Mr Baidarman claims (and the Rosenbaum cross-defendants do not oppose) an order that a new trustee be appointed to the IPD Trust. [22] 1. The findings that are ultimately made in relation to Mr Baidarman's pleaded case that, following the 2009 withdrawals and payments referred to in paragraphs 14 to 16 above, Dabjade (as trustee of Baidarman Super) and Ironwell (as trustee of Ironwell Super) owned 1,437,246 units and 678,740 units respectively in the Omega Unit Trust, will be relevant to: 1. the treatment of the distribution of the sum of $1,720,674.21 to Dabjade and Ironwell in September 2010 in any taking of accounts of the transactions of the Omega Unit Trust since 1 July 2010; and 2. how the remaining funds of the Omega Unit Trust should be distributed between unit holders in any winding up of the trust following the taking of those accounts. 1. By the non-admissions referred to in paragraph 15 above, the Rosenbaum cross-defendants have put Mr Baidarman to proof on that aspect of his case. Summary of the proposed amendments 1. The effect of the Rosenbaum cross-defendants' proposed amendments to the Defence to Amended Cross-Claim, if leave to amend were granted, would be as follows: 1. the Rosenbaum cross-defendants would withdraw their opposition to an order that the administration and execution of the Omega Unit Trust be completed by and under the direction of the Court; [23] 2. the Rosenbaum cross-defendants would withdraw their opposition to an order that an account be taken of the transactions of the Omega Unit Trust, including an enquiry into the respective entitlements of unitholders therein in respect of the sum of $1,720,674.21 paid on 28 September 2010. However, the Rosenbaum cross-defendants would: [24] 1. maintain their currently pleaded position that Mr Rosenbaum had no knowledge that the unitholdings of Ironwell and Dabjade in the Omega Unit Trust were to be adjusted or reorganised as a result of Mr Rosenbaum's withdrawals totalling $603,892 from the Omega Unit Trust in 2009 (of which $493,792 was paid to Mr Baidarman and $110,000 was paid to Mr Rosenbaum); [25] 2. deny (rather than not admitting) that there was an agreement in 2009 between Excelsea, Ironwell and Dabjade to the effect that Ironwell withdrew funds from the Omega Unit Trust pursuant to a redemption or units and/or reorganisation of unit holdings in the Omega Unit Trust; [26] 3. deny (rather than not admitting) that, in consequence of the withdrawals and agreements referred to in (i) and (ii) immediately above, Dabjade (as trustee of the Baidarman Superannuation Fund) held 1,437,246 units in the Omega Unit Trust and Ironwell (as trustee of the Ironwell Employees Superannuation Fund) held 678,740 units in the Omega Unit Trust; [27] 4. deny (rather than not admitting), that the withdrawal of $1,720,674.21 from the Omega Unit Trust on or about 28 September 2010 was made for reasons other than those alleged by the Rosenbaum cross-defendants; [28] and 5. contend that the account in relation to the Omega Unit Trust should be taken of the transactions of the trust since 1 July 2007 (that is, commencing three years earlier than the account sought by Mr Baidarman), including any adjustments to the loan accounts and any readjustment of unit holdings since 1 July 2007. [29] 1. the Rosenbaum cross-defendants would oppose the alternative order sought by Mr Baidarman that a new trustee be appointed to the Omega Unit Trust in the event that the Court did not order that the administration and execution of the Omega Unit Trust be completed by and under the direction of the Court; [30] 2. the Rosenbaum cross-defendants would no longer oppose an order that the administration and execution of the IPD Trust be completed by and under the direction of the Court, and an order that an account be taken of the transactions of the IPD Trust since 1 July 2010. [31] Extent of opposition to the proposed amendments 1. The proposed Amended Defence to the Amended Statement of Cross-Claim was not accompanied by a notice of motion seeking leave to amend or any supporting affidavit. 2. Mr Baidarman opposes leave being granted to the proposed amendments to the Defence to Amended Cross-Claim referred to in paragraphs 36(b)(ii) and 36(b)(v) above. (It is convenient to refer to these as the contested amendments.) Mr Baidarman does not oppose leave being granted in respect of the other amendments. 3. There is no evidence that the proposed Amended Defence to Cross-Claim was served on or provided to Mrs Baidarman or Dabjade, who are represented in this proceeding by different solicitors than the solicitors representing Mr Baidarman. Accordingly, their attitude to the proposed amendments is not known. Mr Baidarman drew the Court's attention to this and to the fact that the proposed amendments may affect the interests of Dabjade, as a unit holder (as trustee for Baidarman Super) in the Omega Unit Trust, and Mrs Baidarman, as a beneficiary of Baidarman Super. Consideration and determination 1. As a matter of procedural fairness, leave to amend could not be granted without Mrs Baidarman and Dabjade being notified of the proposed amendments and being given an opportunity to be heard. However, having regard to the other matters referred to be below that have led me to refuse leave to amend, the application was determined without the Court requiring that notice of the application be given to Mrs Baidarman and Dabjade. 2. As referred to above, Mr Baidarman's contentions about the adjustment to unitholdings in the Omega Unit Trust following withdrawals and payments made in 2009 are not admitted by the Rosenbaum cross-defendants on the existing pleadings. 3. On the face of it, the conversion of this non-admission to a denial by the contested amendments referred to in paragraph 36(b)(ii) above may not appear to have a significant impact on the substance of the issues to be determined by the Court, the scope of the evidence to be adduced by the parties, the manner in which they have conducted their respective cases to date and the conduct of their cases until the conclusion of this hearing. 4. However, I accept Mr Baidarman's submission that, when read together with the contested amendments, the denial is significant. In substance, the Rosenbaum cross-defendants are now seeking to raise a cross-claim for an account of the transactions of the Omega Unit Trust, including loan account adjustments and adjustments to unit holdings, going back for a period three years further than the account that has been sought by Mr Baidarman in the existing pleadings. 5. In the proposed Amended Defence to Amended Cross-Claim, the Rosenbaum cross-defendants have not pleaded any facts on which they would rely in support of an order for the taking of accounts that would re-open such transactions for the period from 1 July 2007 to 30 June 2010, during which time Mr Rosenbaum was one of two directors of the trustee of the Omega Unit Trust and approved the financial statements of the Omega Unit Trust in that capacity. 6. Nor have the Rosenbaum cross-defendants identified any orders, declarations or findings for which they would contend that would inform the process of the taking of the account. This is contrary to the approach adopted by the parties in relation to the application for an order for the taking of accounts of transactions of the Partnership, in which they have each identified their contentions about those transactions, the disputed matters have been dealt with to some extent through the process of the reference and the contest relating to the adoption of the referee's report, and remaining disputed matters are being addressed during this hearing, with a view to the accounts being taken on the basis of the Court's findings in relation to the disputed matters. 7. If leave to amend were granted, the extent of the dispute about matters concerning the Omega Unit Trust during the 2007 to 2010 period would emerge in a piecemeal fashion throughout the cross-examination of Mr Baidarman (which was due to commence when the amendment application was heard), the cross-examination of Mr Warzyniuk (the accountant for the Partnership), and in closing submissions. Mr Baidarman would have lost the opportunity to adduce evidence about these matters in chief through Mr Baidarman and Mr Warzyniuk. He may have also lost the opportunity to cross-examine Mr Rosenbaum about these matters. (Mr Rosenbaum's cross-examination was completed on 2 June 2020.) 8. Even if the Rosenbaum cross-defendants' were to promptly formulate an amended pleading and/or provide particulars of their contentions concerning the transactions of the Omega Unit Trust in the 2007 to 2010 period, such amendments (if leave to amend were granted) would result in time being lost half way through this hearing to provide Mr Baidarman with an opportunity to consider and plead to the amendments, to adduce any further evidence in chief (and, potentially, to conduct further cross-examination of Mr Rosenbaum) before the Rosenbaum cross-defendants begin cross-examination of Mr Baidarman and Mr Warzyniuk. 9. Further time may also be lost if Mrs Baidarman and Dabjade wished to withdraw their submitting appearance and take an active role in the proceeding as a result of the amendments. In that event, they would likely require time to prepare evidence and brief counsel and solicitors to participate in the hearing. 10. Having regard to the trial plan prepared by the parties prior the commencement of the hearing, the inevitable consequence of this scenario would be that this hearing would not be completed within the 14 days allocated to it and would instead be adjourned part-heard to a further date to be fixed before me. Having regard to other matters listed for hearing before me during the balance of this year, there is a very real risk that the further hearing dates for this matter would be in 2021 rather than this year. 11. The Rosenbaum cross-defendants submit that certain aspects of the evidence support an order for the taking of an account of the transactions of the Omega Unit Trust from 1 July 2007. This represents a very stark change of position by the Rosenbaum cross-defendants, who have, until now, resisted any account being taken of the transactions of the Omega Unit Trust. The evidence referred to in their submissions has been available to them since at least June 2019, when Mr Baidarman's evidence was served. To the extent that it comprises documents relating to the Omega Unit Trust, those documents may have been in the possession of Mr Rosenbaum as a director of the former trustee of the Omega Unit Trust for many years prior to June 2019. The Rosenbaum cross-defendants have not offered any explanation for their delay in proposing the amendments, beyond submitting that it had not been apparent to them before now "what can be drawn from that evidence". [32] The substance of what the Rosenbaum cross-defendants now say can be drawn from that evidence was not clearly articulated in their submissions. Whatever that may be, it was not submitted that it could or should not have been apparent to them earlier. 12. In my opinion, it would be contrary to ss 56–58 of the Civil Procedure Act 2005 (NSW) to grant leave to amend in respect of the contested amendments, because, for the reasons explained above, the submissions made in support of the application for leave to amend do not establish that the contested amendments are necessary to determine the real questions raised by the proceedings within the meaning of s 64(2) of that Act and the contested amendments (if leave were granted) would be likely to cause significant delay to the conclusion of the hearing. That delay would be highly undesirable for Mr Baidarman in circumstances where this proceeding has already been on foot for eight years, Mr Baidarman is already retired and he is essentially seeking to resolve financial disputes arising out of his property development partnership with Mr Rosenbaum that has not undertaken any development projects since about 2011. In my view, the inconvenience that would be caused to Mr Baidarman by further delay occasioned by the contested amendments could not be adequately compensated by a costs order. An adjournment of the current hearing would also lead to some inefficiency in the use of the publicly funded resources of the Court. There is no explanation for the very late timing of the application for leave to amend: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, especially at [5], [24] (French CJ) and [67]-[83], [97]-[98], [102]-[103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). The application for leave to amend is therefore refused insofar as it relates to the contested amendments. Postscript: Proposed amendments to Further Amended Statement of Claim 1. During the first week of the hearing, Mr Rosenbaum abandoned a claim for damages for loss of opportunity that was pleaded in prayer 5 and paragraphs 132 to 138 of the Further Amended Statement of Claim. On 2 June 2020, Mr Rosenbaum accepted (through his counsel) that that part of his claim should be dismissed. An order to that effect was made on 3 June 2020. 2. On 31 May 2020, Mr Rosenbaum and Ironwell foreshadowed the introduction in a new prayer 5 of the Further Amended Statement of Claim of a claim for certain declarations and orders as to the manner in which the account of the dealings and transactions of the Partnership and of the partners in relation to the Partnership is to be taken. Mr Baidarman does not oppose the Court granting leave to Mr Rosenbaum and Ironwell to amend the Further Amended Statement of Claim to include that claim for relief. An order to that effect was made on 3 June 2020. ********** Endnotes 1. Further Amended Statement of Claim filed on 1 March 2019 (FASOC) at [1]; Defence to Further Amended Statement of Claim filed on 28 June 2019 (Defence) at [1]. 2. FASOC at [2]; Defence at [2]. 3. Amended Statement of Cross-Claim filed on 1 July 2019 (Cross-Claim) at [61]; Defence to Amended Statement of Cross-Claim field on 28 November 2019 (Cross-Claim Defence) at [52] (page 11). 4. Cross-Claim at [62]; Cross-Claim Defence at [52] (page 11). 5. Cross-Claim at [61]; Cross-Claim Defence at [52] (page 11). 6. Cross-Claim at [63]; Cross-Claim Defence at [52] (page 11). 7. Cross-Claim at [60]-[66]; Cross-Claim Defence at [52]-[54] (page 11). 8. FASOC at [8]-[14]; Defence at [7]-[12]. 9. FASOC at [12]; Defence at [9(a)]. 10. FASOC at [13]; Defence at [11]. 11. Cross-Claim at [67]-[69]. 12. Cross-Claim Defence at [55] (pages 11-12) and [45]-[47] (page 12). 13. Cross-Claim at [70]; Cross-Claim Defence at [46] (page 12). 14. FASOC at [58]-[61]; Defence at [51]-[54]; Cross-Claim at [72]-[86]; Cross-Claim Defence at [48]-[59] (pages 12-13). 15. FASOC at [58]-[61]; Defence at [51]-[54]; Cross-Claim Defence at [49] (page 12). 16. Cross-Claim at [87]; Cross-Claim Defence at [87]. 17. The FASOC was filed on 1 March 2019. The Defence was filed on 28 June 2019. The Cross-Claim was filed on 1 July 2019. The Cross-Claim Defence was filed on 28 November 2019, but did not introduce any claims for relief. 18. Cross-Claim prayer [10B]; Cross-Claim at [65]. 19. Cross-Claim prayer [10C]; Cross-Claim Defence at [66]. 20. Cross-Claim prayer [10D]; Cross-Claim Defence at [65]. 21. Cross-Claim prayer [10B]; Cross-Claim Defence at [65]. 22. Cross-Claim prayer [10C]; Cross-Claim Defence at [66]. 23. Proposed Amended Cross-Claim Defence at [61], [65]. 24. Proposed Amended Cross-Claim Defence at [61]. 25. Cross-Claim Defence at [55]. 26. Cross-Claim Defence at [55] (pages 11-12); Proposed Amended Cross-Claim Defence at [55(o)] (page 10). 27. Cross-Claim Defence at [45] (page 12); Proposed Amended Cross-Claim Defence at [45] (page 10). 28. Cross-Claim Defence at [49] (page 12); Proposed Amended Cross-Claim Defence at [49] (page 11). 29. Proposed Amended Cross-Claim Defence [61], [67]. 30. Cross-Claim prayer [10C]; Proposed Amended Cross-Claim Defence at [65]. 31. Proposed Amended Cross-Claim Defence at [61], [65], [66]. 32. Transcript p 417 (lines 20-26). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2020