Redmond Family Holdings Pty Ltd v GC Access Pty Ltd & Ors [2016] NSWSC 1588

Supreme Court New South Wales

Medium Neutral Citation: Redmond Family Holdings Pty Ltd v GC Access Pty Ltd & Ors [2016] NSWSC 1588 Hearing dates: 26 October 2016 Decision date: 10 November 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Court makes the following orders:

1 The Fifth Defendant be granted leave to reopen his case to put further submissions limited to the question of apportionment of liability as between the Defendants. 2. The Fifth Defendant be granted leave to file a Second Further Amended Defence to the Amended Statement of Claim, amending paragraph 38 of the Further Amended Defence to the Amended Statement of Claim by replacing the proportionate liability defence based on Pt 4 of the Civil Liability Act 2002 (NSW) with a proportionate liability defence based on ss 1041L–1041N of the Corporations Act 2001 (Cth). 3. The Plaintiff and any other Defendant to file any submissions in reply to the Fifth Defendant's submissions on apportionment by 4pm on 5 December 2016. 4. The Fifth Defendant's Notice of Motion dated 30 September 2016 otherwise be dismissed. 5. The Fifth Defendant forthwith (and in any event no later than 4pm on 22 November 2016) pay to the Plaintiff, by its legal representative, costs thrown away by the application to reopen in respect of apportionment, quantified in the lump sum of $7,546 (inclusive of GST). 6. The Fifth Defendant pay the Plaintiff's costs of and incidental to his motion filed on 30 September 2016, excluding the costs of apportionment dealt with in order 5, as agreed or as assessed. Catchwords: PROCEDURE — Judgments and orders — Application for leave to reopen – where the Court had delivered judgment finding certain defendants including the applicant liable for misleading or deceptive conduct by non-disclosure – where applicant sought leave to reopen his case in respect of his liability for non-disclosure – where applicant sought leave to agitate an apportionment claim as between the defendants and to amend his defence to rely on the proportionate liability regime in Pt 7.10 Div 2A of the Corporations Act 2001 (Cth) – where reasons for judgment delivered but orders not entered – whether the Court has proceeded according to some misapprehension of facts or the relevant law – whether leave should be granted to reopen. Legislation Cited: - Australian Securities and Investments Commission Act 2001 (Cth) - Civil Liability Act 2002 (NSW), s 34, Pt 4 - Civil Procedure Act 2005 (NSW), s 56 - Corporations Act 2001 (Cth), ss 1041L, 1041M, 1041N, Pt 7.10 Div 2A Cases Cited: - APIR Systems Ltd v Donald Financial Enterprises Pty Ltd [2009] FCAFC 45 - Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 - De L v Director-General, Department of Community Services (NSW) (No 2) [1997] HCA 14; (1997) 190 CLR 207 - Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38; - Fabcot Pty Ltd v Port Macquarie-Hastings Council [2011] NSWCA 167 - Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 - Kernaghan v Corrections Corporation of Australia Staff Superannuation Pty Ltd (No 2) [2007] FCA 1040 - Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68 - Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 - New Cap Reinsurance Corporation Ltd v A E Grant [2009] NSWSC 950 - Permanent Custodians Ltd v Geagea (No 4) [2016] NSWSC 934 - Redmond Family Holdings v GC Access Pty Ltd [2016] NSWSC 796 - Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 - Wentworth v Rogers [2002] NSWSC 921 - Wentworth v Wentworth [1999] NSWSC 638 Category: Procedural and other rulings Parties: Redmond Family Holdings Pty Limited (Plaintiff) GC Access Pty Limited (First Defendant) Fullham Hall Pty Limited (Second Defendant) H Ridge Investments Pty Limited (Third Defendant) Patrick Charles Oliver Stone (Fourth Defendant) Mark Henry Skinner (Fifth Defendant) Nicholas Simon Collins (Sixth Defendant) Representation: Counsel: M Bennett (Plaintiff) J J Loofs SC (Fifth Defendant)