In the matter of Imperium Projects Pty Limited [2017] NSWSC 141

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Imperium Projects Pty Limited [2017] NSWSC 141 Hearing dates: 8 February 2017 Decision date: 08 February 2017 Jurisdiction: Equity - Corporations List Before: Black J Decision: Refuse leave to the First Plaintiff to file its Further Amended Statement of Claim as proposed and allow opportunity for repleading. Order that the Second Plaintiff be removed as a party to the proceedings. Dismiss the notice of motion seeking to set aside the subpoena issued to Westpac Banking Corporation with costs and order that the parties have access to the documents produced by Westpac Banking Corporation. Catchwords: PROCEDURE – Application for leave to file further amended statement of claim – where amendment would remove company in liquidation as a defendant – whether the company is a necessary party to the proceedings – whether further amended statement of claim is adequately pleaded.

PROCEDURE – Costs – Application for leave to file further amended statement of claim – where applicant is refused leave to file proposed amended statement of claim but leave would be granted if it were partly repleaded – where application said to be consequential on an external event – where motion not yet substantively determined. Legislation Cited: - Corporations Act 2001 (Cth), ss 232–3, 236–7, 493A, 500 - Civil Procedure Act 2005 (NSW), ss 56–8, 64 - Uniform Civil Procedure Rules 2005 (NSW), r 33.4 Cases Cited: - Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 - Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 - Dodrill v Irish Restaurant & Bar Co Pty Ltd [2009] QSC 317 - Dymocks Book Arcade Pty Ltd v Capital Ltd [2011] NSWSC 1433 - Frauenstein v Firinha [2009] FCA 55 - Gunns Ltd v Marr [2005] VSC 251 - Hillig v Darkinjung Pty Ltd [2007] NSWSC 683 - Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452 - Re Cheal Industries Pty Ltd; Fitzpatrick v Cheal [2012] NSWSC 261; (2012) 264 FLR 313 - Vadori v AAV Plumbing Pty Ltd [2010] NSWSC 274; (2010) 77 ACSR 616 - Vigliaroni v CPS Investment Holdings Pty Ltd [2009] VSC 428; (2009) 74 ACSR 282 - William Buck (WA) Pty Ltd v Faulkner [No 6] [2013] WASC 342 - Young v Hones [2013] NSWSC 580 Texts Cited: - RJ Turner, "Directors' Fiduciary Duties and Oppression in closely-held Corporations" (2013) 31 C&SLJ 278 Category: Procedural and other rulings Parties: Michael Hourican (Plaintiff) Imperium Projects Pty Ltd (Second Plaintiff) Justin Mahaffy (Second Defendant) Peter Lord (Third Defendant) Representation: Counsel: R.A. Parsons (Plaintiff) D. Eardley (Second Defendant) P. Folino-Gallo (Third Defendant)