Morony & Ors v Reschke & Ors [2015] NSWSC 860

Supreme Court New South Wales

Medium Neutral Citation: Morony & Ors v Reschke & Ors [2015] NSWSC 860 Hearing dates: 29 May 2015, 19 June 2015 Decision date: 01 July 2015 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Grant leave to the Fourth Defendant to file Amended Statement of Cross-Claim in the form proposed on 29 May 2015. Order that the Fourth Defendant provide security for costs as specified. Grant leave to the Third Defendant to file Cross-Claim in the form proposed on 29 May 2015. Order that Third Defendant provide security for costs as specified. Parties to bring in Short Minutes of Order. Catchwords: PROCEDURE – applications by Third and Fourth Defendants for leave to file a new cross-claim and amended cross-claim – where cross-defendants opposed applications and sought better particulars – whether leave to file a new cross-claim and amended cross-claim

PROCEDURE – costs – application by cross-defendants for security for costs against Third and Fourth Defendants – where security for costs application contingent on granting leave to file a new cross-claim and amended cross-claim – where claims not defensive in nature – where Third and Fourth Defendants are trustee companies and do not trade – whether to grant security for costs

PROCEDURE – joinder – where Third and Fourth Defendants seek leave to join Plaintiffs' solicitor as cross-defendant when proceedings substantially advanced toward hearing – where solicitor is investor in impugned project – where joinder would require the solicitor to withdraw under the Solicitor's Rules – whether application to join inconsistent with overriding purpose under s 56 of the Civil Procedure Act 2005 (NSW) Legislation Cited: - Australian Securities and Investments Commission Act 2001 (Cth) s 12DI - Civil Procedure Act 2005 (NSW) s 22, 56, 57, 58, 64, 64(2) - Corporations Act 2001 (Cth) ss 601FS, 601FT, 728, 1335 - Freedom of Information Act 1982 (Cth) - New South Wales Professional Conduct and Practice Rules (Solicitors' Rules) 2013 r 27.2 - Uniform Civil Procedure Rules 2005 (NSW) r 19.3, 42.21(1), 42.21(1A) Cases Cited: - ACN 105 921 962 Pty Ltd v Wiggett [2012] NSWSC 1526 - Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27; (2009) 239 CLR 175 - Bank of Western Australia v Daleport Pty Ltd [2010] NSWSC 1207 - Beach Petroleum NL v Johnson (1992) 7 ACSR 203 - Bi v Mourad [2010] NSWCA 17 - Cement Australia Pty Ltd v Australian Competition & Consumer Commission [2010] FCAFC 101 - Deangrove Pty Ltd v Buckby [2002] FCA 1544 - DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2015] WASC 105 - Dubow v Fitness First Australia Pty Ltd (No 2) [2012] NSWSC 961 - Dunnet Properties Pty Ltd v Cussen [2009] NSWSC 961 - Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 - Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621 - Liberty Industrial Pty Ltd v Donald McCarthy Trading Australia Pty Ltd [2013] NSWSC 279 - Livingspring Pty Ltd v Klinger Partners [2008] VSCA 93 - Narradine Pty Ltd v Mascot Steel and Tools Pty Ltd [2012] NSWSC 385 - Norcast SarL v Bradken Ltd [2012] FCA 765 - Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd [2006] FCA 1395 - Polstead Pty Ltd (in liq) v Shah [2009] NSWSC 560 - Re Colorado Products Pty Ltd (in prov liq) [2013] NSWSC 611 - Re Pioneer Energy Holdings Pty Ltd [2013] NSWSC 1366 - Walton Construction Pty Ltd v Illawarra Hotel Co Pty Ltd [2008] NSWSC 1248 - Wollongong City Council v Legal Business Centres Pty Ltd [2012] NSWCA 245 Category: Procedural and other rulings Parties: Andre Morony (First Plaintiff) Joseph Edward Duggan (Second Plaintiff) Richard William Turner (Third Plaintiff) Chanturn Pty Ltd atf Staff Superannuation Fund (Fourth Plaintiff) Tadeusz Skoczek (Fifth Plaintiff) Helkad Pty Ltd atf Staff Superannuation Fund (Sixth Plaintiff) Lynbar Pty Ltd atf Roberts Super Fund (Seventh Plaintiff) Rosa Genovesi (Eighth Plaintiff) Denis William Sullivan (Ninth Plaintiff) Anna Lee (Tenth Plaintiff) Barry John Callanan (Eleventh Plaintiff) Hugh Ronald Alexander Millikin (Twelfth Plaintiff) Benjamin David Kirkpatrick (Thirteenth Plaintiff) Stanley Norman Berry (Fourteenth Plaintiff) Ian David McMurtie (Fifteenth Plaintiff) Tolmer Products Pty Ltd (Sixteenth Plaintiff) Peter Charles Thomas (Seventeenth Plaintiff) Burke Robert Stanley Reschke (First Defendant) Coonawarra Property Holdings Pty Ltd (formerly Coonawarra Property Holdings Ltd) (Second Defendant) Koonara Management Pty Ltd (Third Defendant) Rocky Castle Finance Pty Ltd (Fourth Defendant) Advanced Horticultural Management Ltd (formerly Australian Hardwood Management Ltd) (Fifth Defendant) Alan Jessup (Sixth Defendant) Fergus Robert McLachlan (Seventh Defendant) Ian Dugald Murray McLachlan (Eighth Defendant) Ian Murray McLachlan (Ninth Defendant) Representation: Counsel: L P Robberds QC (Plaintiffs) C E Bannan (First to Fourth Defendants) J McDonald (Fifth, Seventh-Ninth Defendants) J McDonald (mentioned for Sixth Defendant)