In the matter of Australian Unity Funds Management Limited [2023] NSWSC 540

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Australian Unity Funds Management Limited [2023] NSWSC 540 Hearing dates: 4 May 2023, with further submissions received on 9 May 2023 Date of orders: 23 May 2023 Decision date: 23 May 2023 Jurisdiction: Equity - Corporations List Before: Williams J Decision: Leave to amend granted in respect of some amendments and otherwise refused. Leave to lead expert evidence refused. Catchwords: PLEADINGS – amendment – application for leave to amend – whether proposed amendments articulate in greater detail a case already pleaded, or introduce a new case – no question of principle. EVIDENCE – expert evidence – whether leave should be granted to plaintiff to lead expert evidence modelling projected future financial position of first defendant responsible entity at the time that its directors allegedly exercised their powers to cause the responsible entity to enter into certain transactions for an improper purpose – no question of principle. Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58, 64 Corporations Act 2001 (Cth) s 601FC(1)(c) Uniform Civil Procedure Rules 2005 (NSW) r 31.19 Cases Cited: Advance Bank Australia Ltd v FAI Insurances Ltd (1987) 9 NSWLR 464 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Hancock v Rinehart (2015) 13 ASTLR 1; (2015) 106 ACSR 207; [2015] NSWSC 646 Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821; [1974] 1 NSWLR 68 NorthWest Healthcare Australia RE Limited v Australian Unity Funds Management Limited [2023] NSWSC 86 Rennie Golledge Pty Ltd v Ballard (2012) 82 NSWLR 231; [2012] NSWCA 376 Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285; [1987] HCA 11 Texts Cited: N/A Category: Procedural rulings Parties: NorthWest Healthcare Australia RE Limited (ACN 612 310 148) (as trustee of NWH Australia Hold Trust No. 2 and trustee of NorthWest Australia Hospital Investment No. 2 Bid Trust) (Plaintiff) Australian Unity Funds Management Limited (ACN 071 497 115) (as responsible entity of Australian Unity Healthcare Property Trust) (First Defendant) Australian Unity Strategic Holdings Pty Ltd (ACN 006 803 050) (Second Defendant) Australian Unity Limited (ACN 087 648 888) (Third Defendant) Dexus Funds Management Limited (ACN 060 920 783) (Fourth Defendant) Dexus Wholesale Management Limited (ACN 159 301 907) (Fifth Defendant) Dexus Property Services Pty Limited (ACN 080 918 252) (Sixth Defendant) Representation: Counsel: Mr N Young KC with Ms T Wong SC and Ms R Mansted (Plaintiff) Mr P D Crutchfield KC with Mr J J Rudd (First Defendant) Mr M Darke SC with Ms A Smith (Second and Third Defendants) Mr M Izzo with Mr J Burnett and Ms J Taylor (Fourth, Fifth and Sixth Defendants)