Fortress Credit Corporation (Australia) II Pty Limited v William John Fletcher and Katherine Elizabeth Barnet as liquidators of Octaviar Administration Pty Ltd (In Liq) (No 2) [2013] NSWSC 1625

Supreme Court New South Wales

Medium Neutral Citation: Fortress Credit Corporation (Australia) II Pty Limited v William John Fletcher and Katherine Elizabeth Barnet as liquidators of Octaviar Administration Pty Ltd (In Liq) (No 2) [2013] NSWSC 1625 Hearing dates: 5 September 2013 Decision date: 08 November 2013 Jurisdiction: Equity Division Before: Robb J Decision: (1)The court, subject to par (2), proposes to make orders that the defendants give discovery to the plaintiff as set out in par 188 of these reasons for judgment. (2)The court directs the parties to bring in short minutes of order (which may suggest variations to the proposed orders to accord with these reasons for judgment). (3)The court will hear the parties as to costs. Catchwords: APPLICATION FOR PRELIMINARY DISCOVERY - whether plaintiff satisfies Rule 5.3 Uniform Civil Procedure Rules 2005 - whether preliminary discovery would relevantly assist plaintiff to make the decision to make a claim against defendant - claims plaintiff could potentially bring against defendant - challenge to funding agreement to fund proceedings in Supreme Court of Queensland against plaintiff - funding and funded party in liquidation. Legislation Cited: Corporations Act 2001 (Cth) Federal Court Rules 2011 Federal Court (Corporations) Rules 2000 (Cth) Supreme Court (Corporations) Rules 1999 Uniform Civil Procedure Rules 2005 Cases Cited: Armitage v Gainsborough Properties Pty Ltd [2011] VSC 419 Aston v Heron (1834) 2 My & K 390; 39 ER 993 Bauhaus Pyrmont Pty Limited (In Liq) [2006] NSWSC 742 Condon v Watson (2009) 69 ACSR 350 Deloughery v Weston (2010) 79 ACSR 180 Fletcher & Ors (as liquidators of Octaviar Ltd (receivers and managers appointed)) v Fortress Credit Corporation (Australia) II Pty Ltd (2011) 82 ACSR 352 Fletcher and Barnet, in the matter of Octaviar Limited (Receivers and Managers Appointed) (In Liq) and Octaviar Administration Pty Ltd (In Liq) [2011] FCA 132 Fletcher and Barnet, in the matter of Octaviar Limited (Receivers and Managers Appointed)(In Liq) and Octaviar Administration Pty Ltd (In Liq)(No 2) [2011] FCA 315 Fortress Credit Corporation (Australia) 11 Pty Ltd v Fletcher [2011] FCAFC Hall v Poolman (2009) 75 NSWLR 99 Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506 Leigh re King Bros [2006] NSWSC 315 Public Trustee (Qld) v Octaviar Ltd (subject to a deed of company arrangement) (receivers and managers appointed) (2009) 73 ACSR 139 Mamone and Another v Pantzer (2001) 36 ACSR 743 McGrath & Anor re HIH Insurance Ltd [2005] NSWSC 731 Morton v Nylex Ltd [2007] NSWSC 562 Murray & Anor v Wheeler & Ors [2013] NSWSC 137 Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434; 1 ACSR 79 Re Galaxy Media Ltd (recs and mgrs appointed) (2001) 39 ACSR 483 Re Hutton (1969) 2 Ch 201 Re Maidstone Palace of Varieties (1909) 2 Ch 283 Re McGrath (2010) 266 ALR 642; 78 ACSR 405; [2010] NSWSC 404 Re Siromath Pty Ltd (1991) 9 ACLC 1580 Re Spedley Securities Limited (in liq)(1992) 9 ACSR 83 St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 Sydlow Pty Ltd (in liq) v TG Kotselas Pty Ltd (1996) 65 FCR 234 Re St Gregory's Armenian School (in liq) (2012) 92 ACSR 588 Westpac Banking Corporation v Totterdell (1998) 20 WAR 150; (1998) 29 ACSR 448 Category: Interlocutory applications Parties: Fortress Credit Corporation (Australia) II Pty Limited (Plaintiff) William John Fletcher and Katherine Elizabeth Barnet as Liquidators of Octaviar Administration Pty Limited (In Liquidation) (Joint Defendants) Representation: Counsel: C Bova (Plaintiff) B Coles QC and J Taylor (Joint Defendants) Solicitors: Baker & McKenzie (Plaintiff) Henry Davis York (Joint Defendants) File Number(s): 2013/00174439