James v Australia and New Zealand Banking Group Ltd (No 2) [2017] NSWSC 216

Supreme Court New South Wales

Medium Neutral Citation: James v Australia and New Zealand Banking Group Ltd (No 2) [2017] NSWSC 216 Hearing dates: 24 February 2017; further proposed Amended Commercial List Summons and Statement circulated 1 March 2017 Decision date: 09 March 2017 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Leave to amend Commercial List Summons and Statement refused Catchwords: PRACTICE AND PROCEDURE – whether first plaintiff should be given leave to amend – whether claim by first plaintiff should be dismissed; GUARANTEES – judgment entered against plaintiff under guarantees – whether fact of judgment precludes plaintiff from now raising impeachment of title claim or sale at undervalue claim; JUDGMENTS AND ORDERS – res judicata Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) Cases Cited: Ankar Pty Ltd v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549 Australia and New Zealand Banking Group Ltd v James [2016] NSWSC 108 Australian Postal Corporation v Oliver [2006] VSC 318 Black v The Ottoman Bank (1862) 15 ER 573; 15 Moo. P.C. 472 Brighton v Australia and New Zealand Banking Group Ltd [2011] NSWCA 152 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Forsyth v Gibbs [2008] QCA 103; [2009] 1 Qd R 403 GE Capital Australia v Davis (2002) 180 FLR 250; NSWSC 1146 Hawes v Dean [2014] NSWCA 380 Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd (2008) 72 NSWLR 160 Modderno v Australian and New Zealand Banking Group Ltd [1999] NSWCA 13 O'Brien v Bank of Western Australia Ltd (2013) 16 BPR 31, 705; NSWCA 71 Palaniappan v Westpac Banking Corporation [2016] WASCA 72 Surf Road Nominees Pty Limited v James [2004] NSWSC 61 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; HCA 28 Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 Webster Investments Pty Ltd v Anderson Pty Ltd [2016] VSC 620 Texts Cited: J O'Donovan and J Phillips, Modern Contract of Guarantee, (4th ed 2015, Thomson Reuters) Halsbury's Law of Australia (LexisNexis) Category: Procedural and other rulings Parties: David Anthony James (First Plaintiff) Liquor National Pty Ltd (Receivers and Managers Appointed) (in liq) (Second Plaintiff) Wine National Pty Ltd (Receivers and Managers Appointed) (in liq) (Third Plaintiff) Print National Pty Ltd (Receivers and Managers Appointed) (in liq) (Fourth Plaintiff) Print National Australia Pty Ltd (Receivers and Managers Appointed) (in liq) (Fifth Plaintiff) TLT Nominees Pty Ltd (Receivers and Managers Appointed) (in liq) (Sixth Plaintiff) Newcastle Liquor Wholesalers Pty Ltd (Receivers and Managers Appointed) (in liq) (Seventh Plaintiff) Aramax Nominees Pty Ltd (Eighth Plaintiff) Primax Nominees Ltd (Ninth Plaintiff) Australia and New Zealand Banking Group Limited (First Defendant) Paul Merryweather and Greg Hall both in their personal capacities and in their capacities as Receivers and Managers of each of TLT Nominees Pty Ltd (Receivers and Managers Appointed) (in liq) and Newcastle Liquor Wholesalers Pty Ltd (Receivers and Manages Appointed) (in liq) (Second Defendant) Representation: Counsel: J E Sexton SC with J Baird (First Plaintiff/Applicant) I M Jackman SC with R Foreman (Defendants/Respondents)