In the matter of 1st Fleet Pty Limited (in liquidation) and other companies [2017] NSWSC 506

Supreme Court New South Wales

Medium Neutral Citation: In the matter of 1st Fleet Pty Limited (in liquidation) and other companies [2017] NSWSC 506 Hearing dates: 11 April 2017 Decision date: 02 May 2017 Jurisdiction: Equity - Corporations List Before: Black J Decision: Grant leave to the Plaintiffs to file an Amended Originating Process and Amended Statement of Claim. Grant leave to the Plaintiffs to discontinue proceedings against the Second Defendant with no order as to costs. Decline to make orders sought by the parties for the determination of certain separate questions. Catchwords: PROCEDURE – Application for leave to file Amended Originating Process and Amended Statement of Claim – where application made after the expiry of the limitation period for commencing proceedings – whether delay adequately explained – whether Defendants would suffer prejudice

PROCEDURE – Applications for determination of separate questions before any trial – where separate questions would depend on the same evidence as would be led at trial – where judge may make credit findings on separate questions and thereby be prevented from hearing the balance of proceedings

PROCEDURE – Costs – where Plaintiff discontinues proceedings against the Second Defendant – where continuance of proceedings substantially due to the Second Defendant's failure to provide Plaintiffs with requested information – whether Second Defendant should be awarded its costs Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 56–59, 64–65 - Corporations Act 2001 (Cth), ss 588FA, 588FE–588FF - Uniform Civil Procedure Rules 2005 (NSW), Pt 28, rr 12.1, 42.19(3) Cases Cited: - Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 - Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 - Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 - Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423 - Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 - Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 - Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 - Re Cardinal Group Pty Limited (in liq) [2015] NSWSC 1761; (2015) 110 ACSR 175 - Re Clarecastle Pty Ltd (in liq) [2011] NSWSC 857; (2011) 85 ACSR 260 - Re Discovery Books Pty Ltd (1973) 20 FLR 470 - Sydney Recycling Park Pty Ltd v Cardinal Group Pty Ltd (in liq) [2016] NSWCA 329; (2016) 341 ALR 313 - Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 - Wells v Commonwealth of Australia [2014] NSWSC 148 Category: Procedural and other rulings Parties: David Solomons and Riad Tayeh in their capacity as liquidators of the Second to Ninth Plaintiffs, 1st Fleet Pty Ltd (in liq) and others (Plaintiffs) The Trust Company Limited (in its capacity as Bare Trustee of the Cromwell Accumulation Fund) (First Defendant) Cromwell Property Securities Limited (Second Defendant) Representation: Counsel: A P Spencer (Plaintiffs) M Condon SC (Defendants)