Forge Group Ltd (In Liq) (Receivers and Managers Appointed) v Hutchinson (No 3) [2021] NSWSC 576

Supreme Court New South Wales

Medium Neutral Citation: Forge Group Ltd (In Liq) (Receivers and Managers Appointed) v Hutchinson (No 3) [2021] NSWSC 576 Hearing dates: 12 May 2021 Decision date: 21 May 2021 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Leave granted to Eighteenth and Nineteenth Defendants to amend their Commercial List Response and to bring a Cross-Claim Cross-Summons against the Plaintiff. Leave to bring a Cross-Claim Cross-Summons for equitable contribution against First to Eleventh Defendants is refused. Catchwords: EQUITY – contribution – co-ordinate liabilities – where company in liquidation sued former directors and auditors – where auditors seek leave to bring Cross-Claim for equitable contribution from former directors – whether liabilities co-ordinate – whether obligations of auditors and directors to company are of the same nature and extent such as to warrant claim for equitable contribution PRACTICE AND PROCEDURE – pleadings – application to amend Commercial List Response – application to bring Cross-Claim Cross-Summons seeking equitable contribution Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Caledonian Railway Company v Colt (1860) 3 Macq 833 Forge Group Limited & Anor v Hutchinson & Ors [2021] NSWSC 370 Friend v Brooker (2009) 239 CLR 129; [2009] HCA 21 Government Insurance Office (NSW) v Crowley [1975] 2 NSWLR 78 HIH Claims Support Ltd v Insurance Australia Ltd (2011) 244 CLR 72; [2011] HCA 31 La Rosa; Ex parte Norgard v Rodpat Nominees Pty Ltd (1991) 31 FCR 83 Lavin v Toppi (2015) 254 CLR 459; [2015] HCA 4 Mahoney v McManus (1981) 180 CLR 370; [1981] HCA 54 Smith v Australian Executor Trustees Ltd; Creighton v Australian Executor Trustees Ltd [2017] NSWSC 1406 Tamaya Resources Ltd (In Liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2 Category: Procedural rulings Parties: Forge Group Ltd (In Liq) (Receivers and Managers Appointed) (Plaintiff/Respondent) Peter Geoffrey Hutchinson (First Defendant) Andrew Blair Ellison (Second Defendant) Marcello Davide Cardaci (Third Defendant) Gregory Lewis McRostie (Fourth Defendant) David Anthony Craig (Sixth Defendant) Neil Siford (Seventh Defendant) Kevin Thomas Gallagher (Eighth Defendant) David Michael Simpson (Ninth Defendant) Gregory Knowles Kempton (Tenth Defendant) John Peter O'Connor (Eleventh Defendant) Grant Thornton Audit Pty Limited (Eighteenth Defendant/Applicant) Grant Thornton Australia Limited (Nineteenth Defendant/Applicant) Representation: Counsel: W A D Edwards with T Bagley (Plaintiff/Respondent) M R Elliott SC (First Defendant) S Kanagaratnam (Second and Fourth Defendants) N Bender (Third, Tenth and Eleventh Defendants) I R Pike SC with A Gomez (Sixth Defendant) J Hutton (Ninth Defendant) P Brereton SC with D Hughes (Eighteenth and Nineteenth Defendants)