The Trust Company (Australia Limited v Perry [2012] NSWSC 604

Supreme Court New South Wales

Medium Neutral Citation: The Trust Company (Australia Limited v Perry [2012] NSWSC 604 Hearing dates: 17 May 2012 Decision date: 06 June 2012 Jurisdiction: Common Law Before: Schmidt J Decision: The plaintiff bear Mr Hartnett's costs of the proceedings, as agreed or assessed, up to and including the hearing and in the case of Mr Perry, the plaintiff bear his costs thrown away as the result of the amendment of the statement of claim, as well as his costs of the motions, his pursuit of the standing issue and the hearing, as agreed or assessed. Catchwords: PROCEDURE - notices of motion - application for joinder - order seeking proceedings to be transferred to Queensland - question of standing - agreement reached - costs Legislation Cited: Civil Procedure Act 2005 Corporations Act 2001 (Cth) Jurisdiction of Courts (Cross-Vesting ) Act 1987 Property Law Act 1974 (QLD) Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: The Trust Company (Australia) Limited ACN 000 000 993 (Plaintiff) Craig Andrew Perry (First Defendant) Beau Timothy John Hartnett (Second Defendant) Representation: Counsel: Mr A Coleman SC with Mr A Izzo (Plaintiffs) Mr MW Young SC (Defendants) Solicitors: Piper Alderman (Plaintiff) Hartnett Lawyers (Defendants) File Number(s): 2010/408475 Publication restriction: None

Judgment 1By statement of claim filed on 8 December 2010, the plaintiff sought orders that the defendants pay it two sums, which total in excess of $20M, claimed to be due under a loan facility and a mortgage held over property located at Broadbeach in Queensland, which is owned by Bullish Bear Holdings Pty Ltd. It is claimed that the defendants have provided certain guarantees in respect of the loan and that moneys due under the loan were not repaid when they fell due. 2The first defendant, Mr Perry, filed a defence in August 2011. The second defendant, Mr Hartnett, filed no defence, he having pursued with the plaintiff the question of its standing to bring the proceedings. 3On 16 March 2012, the Registrar made a consent order as to the separate determination of the question of the plaintiff's standing to bring the proceedings, and/or that of Trilogy Funds Management Ltd ('Trilogy'). It was Trilogy who had appointed the plaintiff to act as custodian of the assets of the Pacific First Mortgage Fund, a managed investment scheme registered under Part 5C of the Corporations Act 2001. 4On the written submissions there was a question raised as to whether the Registrar had delegated power to make such an order under the applicable Rule (see Rule 28.2 of the Uniform Civil Procedure Rules 2005). The parties were agreed, however, that the standing question was appropriate to be determined at this stage of the proceedings, given that if this discrete question was decided adversely to the plaintiff, the proceedings would be brought to an end. 5There were also two motions filed. The first, a motion filed by the plaintiff in March 2012, seeking to have Trilogy joined as a plaintiff in the proceedings. The second, a motion filed by the defendants in May 2012, seeking to have the proceedings transferred to the Supreme Court of Queensland pursuant to the Jurisdiction of Courts (Cross-Vesting ) Act 1987. 6When the hearing commenced, the plaintiff announced that various steps had recently been taken to address matters raised in the defendants' submissions, including the service of amended notices, the service of various new notices and the entry of a deed of assignment. These steps had also necessitated the service of a proposed amended statement of claim. I urged the parties to discuss whether these developments might lead to the resolution of any of the matters lying between them. They did. The parties agreed as to further steps to be taken to cure the standing issue. 7In the final result the parties were agreed as to the orders to be made as to all of the matters then before the Court, other than as to certain costs. The orders agreed were: "1. The Plaintiff has leave to file an amended Statement of Claim within 14 days. 2. Upon the filing of an Amended Statement Claim in accordance with Order 1 the proceedings be transferred to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987."