In the matter of Festival Corp Pty Ltd [2020] NSWSC 1426

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Festival Corp Pty Ltd [2020] NSWSC 1426 Hearing dates: 2 October 2020 Date of orders: 15 October 2020 Decision date: 15 October 2020 Jurisdiction: Equity - Corporations List Before: Black J Decision: Application dismissed. Second and Third Plaintiffs to pay the costs of the application. Catchwords: CIVIL PROCEDURE — Parties — Joinder — Whether entity that is not seeking relief in the proceedings should be joined as plaintiff — Where Second and Third Plaintiffs and that entity foreshadow future amendment to the pleading. CIVIL PROCEDURE — Orders for production of documents — Whether consent orders require production of documents not related to issues currently pleaded — Where documents sought for Second and Third Plaintiffs to advance foreshadowed amendment to pleading. EQUITY — Equitable remedies — Injunctions at general law — Injunctions under s 1324 of the Corporations Act 2001 (Cth) — Prima facie case — Balance of convenience — Enjoining borrowing or encumbrances of company without specified notice to third plaintiff — Where third plaintiff who seeks interlocutory relief has no existing right to notice of company's proposed borrowings. Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 56-58, 64, 66, 68 and 90 - Corporations Act 2001 (Cth), s 233, 237, 1324 - Evidence Act 1995 (NSW), s 136 - Supreme Court Act 1970 (NSW), s 65 - Uniform Civil Procedure Rules 2005 (NSW), rr 6.19 and 6.20 Cases Cited: - Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 - Australian Securities and Investments Commission v Mapstone (2006) 59 ACSR 214; 24 ACLC 1246; [2006] NSWSC 993 - Australian Securities and Investments Commission v Marshall-Bell Hawkins Ltd (2002) 43 ACSR 340; [2002] FCA 1511 - CME Properties (Australia) Pty Ltd v Prime Capital Securities Pty Ltd [2016] WASC 231 - Fayad v Bellpac Pty Ltd [2004] NSWSC 755 - Morara Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 136 - Re Festival Corp Pty Ltd [2020] NSWSC 701 Category: Procedural and other rulings Parties: Festival Corp Pty Ltd (First Plaintiff) Joseph Khattar (Second Plaintiff) Chahida Khattar (Third Plaintiff) BNB 88 Pty Ltd (First Defendant) Sam Fayad (Second Defendant) Dyldam Developments Pty Ltd (Third Defendant) Fayad Lee Fayad (Fourth Defendant) Remon Fayad (Fifth Defendant) Maria Fayad (Sixth Defendant) Hills Shoppingtown Pty Ltd (Eleventh Defendant) Representation: Counsel: M Condon SC/S Clemmett (Second and Third Plaintiffs) A P Coleman SC/A D'Arville (Second – Sixth Defendants) J O'Shaunassy (Thirty-Second Defendant) M Whitbread (Solicitor) (Receivers and Managers of JK3 Pty Ltd)