HP Mercantile Pty Ltd v Clements [2014] NSWSC 509

Supreme Court New South Wales

Medium Neutral Citation: HP Mercantile Pty Ltd v Clements [2014] NSWSC 509 Hearing dates: 12, 14 and 20 March 2014 Decision date: 02 May 2014 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Orders made for proceedings to be dismissed and parties to be heard as to costs. Catchwords: CONTRACTS - construction - loan agreements - where defendant entered into managed agricultural investment scheme and executed loan agreements with initial managing entity of the scheme - where rights to debt owed by defendant was assigned to plaintiff under sequence of assignments - where plaintiff has demanded repayment of relevant principal sum and interest - whether assignor had incurred harvesting and marketing costs under relevant agreement - whether it can be established that a particular amount is owed by defendant in respect of such costs - whether defendant made income from interest in project available in its entirety to relevant representative under loan agreements - whether limited recourse provision in loan agreement ceased to have effect - whether default occurred under loan agreements. PROCEDURE - where plaintiff now claims different amount of harvesting and marketing costs from amount originally pleaded on basis of different evidence - no amendment application made - whether defendant would suffer real prejudice by change in plaintiff's claim.

WORDS AND PHRASES - "income" - "made available". Legislation Cited: - Bankruptcy Act 1966 (Cth) s 111 - Bills of Exchange and Other Instruments Act 1955 (QLD) - Corporations Act 2001 (Cth) s 9 - Corporations Law s 9 - Evidence Act 1995 (NSW) ss 69, 136 Cases Cited: - Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd [2000] HCA 25; (2000) 202 CLR 588 - Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 - Carlow Castle Pty Ltd trading as Greenhill Capital Partners v Aztec Resources Ltd [2014] NSWCA 123 - Cinema Plus Ltd (admin apptd) v Australia & New Zealand Banking Group Ltd [2000] NSWCA 195; (2000) 49 NSWLR 513 - Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 - Current Images Pty Ltd v Dupack Pty Ltd [2012] NSWCA 99 - Gosling v McCombie [1972] HCA 40; (1972) 126 CLR 487 - Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 - Lend Lease Real Estate Investments Ltd v JPT Re Ltd [2006] NSWCA 207 - McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 - Optus Vision Pty Ltd v Australian Rugby Football League Ltd [2004] NSWCA 61 - Osborne Computer Corporation Pty Ltd v Airroad Distribution Pty Ltd (1995) 37 NSWLR 382; 17 ACSR 614 - Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 - Re Price; ex parte Tinning (1931) 26 Tas LR 158 - Re Trendent Industries Pty Ltd (in liq) (1983) 8 ACLR 115; 1 ACLC 980 - Seka Pty Ltd (in prov liq) v Fabric Dyeworks (Aust) Pty Ltd (1991) 28 FCR 574; 4 ACSR 455 - Thompson v Smith [1976] HCA 56; (1976) 135 CLR 102 - Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 282 ALR 604 Texts Cited: - Peter Butt, Land Law (6th ed 2010, Thomson Reuters) Category: Principal judgment Parties: HP Mercantile Pty Ltd (Plaintiff) Phillip Clements (Defendant) Representation: Counsel: P M Knowles (Plaintiff) (12 and 14 March); J Simpkins SC/P M Knowles (20 March) C R C Newlinds SC/A d'Arville (Defendant) Solicitors: Versace McKenzie Lawyers (Plaintiff) Legal & Commercial Solutions (Defendant) File Number(s): 2009/289202