In the matter of Felan’s Fisheries Pty Limited [2016] NSWSC 1901

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Felan's Fisheries Pty Limited [2016] NSWSC 1901 Hearing dates: 13 December 2016 (last submissions 16 December 2016) Decision date: 23 December 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Court directs that the parties send agreed short minutes to give effect to this judgment, including as to costs, to the Associate to Black J by 4pm on 27 January 2016, or, if there is no agreement between them, their respective short minutes of order with short submissions as to any differences between them. Catchwords: Practice and procedure — Amendment application — where applicant sought leave under r 6.21 of the Uniform Civil Procedure Rules 2005 (NSW) to join additional persons as defendants – where applicant sought leave under s 64 of the Civil Procedure Act 2005 (NSW) to file and serve an Amended Originating Process and Further Amended Statement of Claim – where several defendants directly affected by the proposed amendments did not oppose the amendments – whether pleading in Further Amended Statement of Claim has tendency to cause embarrassment or cause prejudice – whether the Court should exercise discretion to allow amendments. Practice and procedure — Costs — where the Court previously dismissed the first defendant's application for security for costs – where the plaintiff unreasonably put the first defendant to proof of the plaintiff's impecuniosity in the application for security for costs – where parties were in dispute as to the costs order sought by the plaintiff – whether issues in proceedings clearly dominant or separable – whether cost orders sought should be made. Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64 - Companies (Vic) Code, s 574 - Corporations Act 2001 (Cth), ss 181, 233, 1324 - Uniform Civil Procedure Rules 2005 (NSW), rr 6.21, 14.28 Cases Cited: - AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 - Australian Securities and Investments Commission v Mapstone [2006] NSWSC 993; (2006) 59 ACSR 214 - Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 - Break Fast Investments Pty Ltd v Giannopoulos [2011] NSWSC 1117 - Broken Hill Proprietary Co Ltd v Bell Resources Ltd (1994) 8 ACLR 609 - Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147; (2009) 180 FCR 11 - Choo v Zhang (No 2) [2016] NSWCA 301 - Commonwealth Bank of Australia v ZYX Learning Centres Ltd [2014] NSWSC 1676; (2014) 103 ACSR 476 - Cooper v Myrtace Consulting Pty Ltd [2014] FCA 480 - Doppstadt Australia Pty Ltd v Lovick & Son Development Pty Ltd (No 2) [2014] NSWCA 219 - Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 - Kadam v MiiResorts Group 1 Pty Ltd (No 2) [2016] FCA 1343 - Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6; (2015) 255 CLR 62 - Levin v Clark [1962] NSWR 686; (1960) 80 WN (NSW) 485 - McCracken v Phoenix Constructions (Qld) Pty Ltd [2012] QCA 129; [2013] 2 Qd R 27 - McGuirk v University of New South Wales [2009] NSWSC 1424 - Oates v Hawkins [2010] NSWSC 491 - Re Broadcasting Station 2GB Pty Ltd [1964-65] NSWR 1648 - Re Felan's Fisheries Pty Limited [2016] NSWSC 1351 - Re Felan's Fisheries Pty Limited [2016] NSWSC 581 - Re Fishinthenet Investments Pty Ltd [2014] NSWSC 260 - Shelton v National Roads & Motorists Association Ltd [2004] FCA 1393; (2004) 51 ACSR 278 - Simmons v Henwood [2003] NSWCA 184 - Simmons v Protective Commissioner (NSW) [2002] NSWSC 455 - Treadtel International Pty Ltd v Cocco [2016] NSWCA 360 - Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 Texts Cited: - Professor R Baxt, "Will Section 574 of the Companies Code Please Stand Up! (And Will Section 1323 of the Corporations Act Follow Suit)" (1989) 7 C&SLJ 388 - "The versatility of s 1324 of the Corporations Act" (2012) 8(2) Baxt Report Category: Procedural and other rulings Parties: Felan's Fisheries Pty Limited (Plaintiff) Sydney Fish Market Pty Limited (First Defendant) SFM Tenants and Merchants Pty Limited (Second Defendant) Bruce James Standen (Third Defendant) Grahame Richard Turk (Fourth Defendant) John Samuel Symonds (Fifth Defendant) William John Gallagher (Sixth Defendant) Sandra Margaret Hook (Seventh Defendant) Terry Con Poulos (Eighth Defendant) Harry Kouros (Ninth Defendant) Gregory George Imisides (Tenth Defendant) Nicholas Peter Manettas (Eleventh Defendant) Representation: Counsel: R Carey (Plaintiff) J C Hewitt (First Defendant) K Kumar (Solicitor – Third to Ninth Defendants)