Modakboard Australia Pty Ltd v Matthew Howard Brady [2018] NSWSC 399

Supreme Court New South Wales

Medium Neutral Citation: Modakboard Australia Pty Ltd v Matthew Howard Brady [2018] NSWSC 399 Hearing dates: 6 March 2018 Date of orders: 04 April 2018 Decision date: 04 April 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Refuse leave for the filing of the proposed further amended cross-claim in the form annexed to the affidavit of Matthew Howard Brady sworn 5 March 2018 and dismiss with costs the defendants/cross-claimants' amended notice of motion filed 17 January 2018. (2) Give leave for the second cross-claimant (Crewmark Pty Ltd) to serve any further proposed further amended cross-claim (addressing the deficiencies identified in these reasons) on the first cross-defendant (Modakboard Australia Pty Ltd) and the proposed second and third cross-defendants (Ms Cohen and Mr Jones) within 21 days of compliance with order [4] below, such further proposed further amended cross-claim against the proposed second and third cross-defendants to be limited to the second cross-claimant's cross-claims against them in relation to alleged misleading or deceptive, or unconscionable, conduct (or accessorial liability therefor) but not to include any claim for negligent misstatement. For the avoidance of doubt, I refuse leave for the first cross-claimant (Mr Brady) to serve any further proposed further amended cross-claim. (3) If there is objection to the filing of any such further proposed further amended cross-claim on the basis that it does not adequately address the pleading deficiencies identified in these reasons or otherwise, give liberty to the parties to relist the matter before me on 3 days' notice to determine whether leave should be granted to file that further proposed further amended cross-claim. (4) Pursuant to rule 42.21(1) of the Uniform Civil Procedure Rules 2005 (NSW) and s 1335(1) of the Corporations Act 2001 (Cth), order that the second cross-claimant (Crewmark Pty Ltd) provide security within 28 days for the second cross-defendant's (Ms Cohen's) costs of and incidental to the cross-claim from the date of service of any pleading in accordance with order 2 above up to but not including the final hearing of this matter, in the amount of $50,000 (that being calculated at 80% of $60,940 – namely $42,658.00 – rounded up to $50,000), such security to be provided by way of an unconditional bank guarantee in a form acceptable to the proposed second cross-defendant (Ms Cohen). (5) In the event that the security ordered in order 4 above is not provided within the time specified, order that the proceedings on the cross-claim against the proposed second cross-defendant (Ms Cohen) be stayed until further order. (6) Grant the proposed second cross-defendant (Ms Cohen) liberty to apply on 3 days' notice for further security to be provided for the period from the commencement of the hearing or to increase the amount of security ordered in order 4 if that amount proves insufficient or in the event that there is disagreement as to the acceptability of the unconditional bank guarantee provided pursuant to order 4. (7) Order that the second cross-claimant (Crewmark Pty Ltd) pay the proposed second cross defendant's (Ms Cohen's) costs of the motion for security for costs. (8) Order that the defendants/cross-claimants pay the costs of the first cross-defendant (Modakboard Australia Pty Ltd) and the proposed third cross-defendant (Mr Jones) thrown away by the proposed amendment of the initial cross-claim, including the costs of the motion ordered in order 1. (9) Order that the defendants/cross-claimants pay the proposed fourth cross-defendant's (Libbie Pty Ltd's) costs of the proceedings (other than to the extent that these costs have already been made the subject of costs orders). (10) Order that the costs awarded at [1], [8] and [9], as well as the costs ordered by Rein J on 8 September 2017 in favour of the proposed second and fourth cross-defendants (Ms Cohen and Libbie Pty Ltd), be assessable and payable forthwith. Catchwords: CIVIL PROCEDURE – Pleadings – Amendment