New South Wales Supreme Court CITATION : Lift Capital Partners Pty Ltd (in Liq) v Bacnet Pty Ltd & ors [2010] NSWSC 857 HEARING DATE(S) : 4 June 2010 JURISDICTION : Equity Division JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 4 June 2010 DECISION : That the proceedings be adjourned to Friday, 6 August 2010. That the defendant's pay the plaintiff's costs. CATCHWORDS : PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Rules of Court – Amendment – whether application to amend cross claim should be adjourned until application for special leave to the High Court has been heard CATEGORY : Procedural and other rulings Lift Capital Partners Pty Ltd (in liq) (plaintiff/respondent) Bacnet Pty Ltd (first defendant/applicant) Banctrade Pty Ltd (second defendant) Biovest Pty Ltd (third defendant) Columcille Trading Pty Ltd (fourth defendant) Fambros (Aust) Pty Ltd (fifth defendant) Famgroup Pty Ltd (sixth defendant) Famtrust Pty Ltd (seventh defendant) Fictrade Pty Ltd (eighth defendant) Hypertade Pty Ltd (ninth defendant) Jamasco Pty Ltd (tenth defendant) Josmar Pty Ltd (eleventh defendant) Mlt Trade Pty Ltd (twelfth defendant) PARTIES : Musgard Pty Ltd (thirteenth defendant) Payto Pty Ltd (fourteenth defendant) Pennabroker Trading Pty Ltd (fifteenth defendant) Rento Pty Ltd (sixteenth defendant) Sharefund Pty Ltd (seventeenth defendant) Stocknet Pty Ltd (eighteenth defendant) Tf Trade Pty Ltd (nineteenth defendant) Toaust Pty Ltd (twentieth defendant) Trade 2 Pty Ltd (twenty-first defendant) Tradeshare (Aust) Pty Ltd (twenty-second defendant) Tradex (Aust) Pty Limited (twenty-third defendant) Tritrade Pty Ltd (twenty-fourth defendant) Vinang Pty Ltd (twenty-fifth defendant) Famularo, Anthony Samuel (twenty-sixth defendant) FILE NUMBER(S) : SC 09/298689 COUNSEL : Mr G Ng (applicant) Mr M Tyson (respondent) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Friday, 4 June 2010 2009/298689 Lift Capital Partners Pty Ltd (in liq) v Bacnet Pty Ltd & Ors JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff, Lift Capital Partners Pty Limited is a company in liquidation and under administration, which has brought claims against several defendants who have, in turn, filed cross-claims against the plaintiff and, as I understand it, a proposed additional plaintiff. Before the Court is a motion by which the defendant/cross-claimants seek leave to proceed against the company under administration, and leave to amend their cross-claim. 2 The plaintiff has had a scheme of arrangement approved in respect of it in the Federal Court of Australia. The defendant unsuccessfully appealed from the approval of that scheme to the Full Court of the Federal Court. The defendant has now filed an application for special leave to appeal to the High Court, from the dismissal of its appeal to the Full Court of the Federal Court. 3 It appears that the case which the defendant/cross-claimants wish to mount in these proceedings involves claims which the plaintiff/cross-defendant will contend are effectively barred or limited by the scheme of arrangement, so that whilesoever the scheme is in place, the proposed amended cross-claim would be, in part if not in whole, hopeless or futile. However, if the scheme were ultimately overturned, that would no longer be the case. In those circumstances, it would seem that the outcome of the present application for special leave, and any consequent appeal, would be practically determinative of the present motion, in part if not entirely. 4 The plaintiff points to no particular prejudice arising from an adjournment of the present motion. Indeed, one would expect that while the scheme remains the subject of appellate proceedings it would be improbable in the extreme that the administrators would take any irrevocable step in connection with the scheme, and Mr Tyson for the plaintiff confirmed that the scheme documentation contains provisions deferring distribution until after the outcome of any appeal proceedings. 5 As it seems to me that the outcome of the proceedings in the High Court will have a decisive impact on the present motion, and I cannot be satisfied on the material before me that an application to the High Court is entirely without prospects of success, and as no prejudice of significance to the plaintiff from an adjournment has been asserted, a proper exercise of discretion is to adjourn the present application until determination of the application for special leave, and on the basis that were special leave to be granted and in the absence of further developments, then one would anticipate a further adjournment pending the determination of any subsequent appeal. 6 The Court has been informed that an application has been made to the High Court for expedition of the special leave application. In those circumstances, it seems to me that an adjournment for a period of, say, three months with liberty to restore in the meantime in the event that the application comes on sooner, would be appropriate. 7 I adjourn the proceedings to Friday, 6 August 2010 at 9.15 a.m. in the Commercial List Judge's motion list. 8 I order that the defendants pay the plaintiff's costs of today. ********** 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.