In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1070

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1070 Hearing dates: 30 July 2019 Decision date: 22 August 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Grant leave to the first and second cross-defendants to the first cross-claim in these proceedings to file their defence dated 3 July 2019 and to file their proposed third cross-claim of the same date. 2. Direct that the first and second cross-defendants to the first cross-claim in these proceedings file the said pleadings within two business days of the making of these orders and file and serve any additional evidence on which reliance is to be placed for the purposes of the third cross-claim within seven days of the making of these orders. 3. Direct the cross-claimant to the first cross-claim to file and serve within 14 days any reply to the first and second cross-defendants' defence to the first cross-claim. 4. Direct the cross-defendants to the third cross-claim to file and serve their defence to the third cross-claim and any evidence on which they rely by way of defence to the third cross-claim within 28 days of the filing and service of the third cross-claim. 5. Order that the costs of the application for leave to file the said pleadings be costs in the cause. 6. Grant the parties liberty to apply on three days' notice for any variation of the above timetable or if any issues arise in the implementation of the above orders. 7. Stand the matter over to directions before the trial judge on a date to be fixed. Catchwords: CIVIL PROCEDURE – application for leave or extension of time to file and serve defence to first cross-claim – application for leave to file a proposed third cross-claim in the proceedings – whether pleadings precluded by way of issue estoppel or Anshun estoppel – whether withdrawal of admissions made in pleadings filed in relation to a 247A Corporations Acts 2001 (Cth) application – whether allowing the application would cause prejudice by wasted costs – whether the applicants lack bona fides – whether it amounts to an abuse of process Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58 Corporations Act 2001 (Cth), ss 237, 241, 247A, 1322 Evidence Act 1995 (NSW), Dictionary Uniform Civil Procedure Rules 2005 (NSW), r 12.6 Cases Cited: Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Ayoub v Perpetual Trustee Company Limited [2011] NSWSC 606 Bank of Western Australia v Salmon [No 1] [2009] NSWSC 224 Barnden v Zulian; Barnden v Commissioner of Taxation [2018] NSWSC 1980 Batiste v Gilmour-Latham [2001] NSWCA 392 Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 Broadway Plaza Investments v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1082 Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33 Charben Haulage Pty Ltd (in liq) v Beilby [2010] NSWSC 510 Cohen v McWilliam (1995) 38 NSWLR 476 Commonwealth Bank of Australia v Xiong; Landmax Developments Pty Ltd v Commonwealth Bank of Australia [2010] NSWSC 1518 Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Essex Securities Pty Ltd v Lunt [2006] WASC 58 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Gibbs v Kinna [1999] 2 VR 19; [1998] VSCA 52 Glazier v Australian Men's Health (No.2) [2001] NSWSC 6 Goozee v Graphic World Group Holdings Pty Ltd [2002] NSWSC 640; 20 ACLC 1502; 42 ACSR 534 H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694; 1 All ER 934 Hackett v Nambucca Valley Quarries Pty Ltd [2012] NSWSC 1189 In the matter of Akierman Holdings Pty Limited [2015] NSWSC 1395 In the matter of Jimmy's Recipe Pty Ltd [2018] NSWSC 1331 In the matter of Legal Practice Management Group Pty Ltd; nSynergy Pty Ltd and nSynergy International Pty Ltd [2017] NSWSC 1500; In the matter of Mycorp Group Pty Limited (and others) [2013] NSWSC 1344 Isaacs v Ocean Accident and Guarantee Corp Ltd [1957] 58 SR (NSW) 69 J Huang v D Wang [2015] NSWSC 510 Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; (2003) 204 ALR 327 Khouri v National Australia Bank Ltd [2007] NSWSC 987 McEvoy v Caplan [2010] NSWCA 115; 78 ACSR 167 McFadden v Snow (1952) 69 WN (NSW) 8 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Ragless v IPA Holdings Pty Ltd (in liq) [2012] SASC 203 Rogers v the Queen (1994) 181 CLR 251; [1994] HCA 42 SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816 Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 State of Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146; [1997] HCA 1 The Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 Thoday v Thoday [1964] 1 All ER 341; [1964] 2 WLR 371 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Trustees for the Roman Catholic Church for the Diocese of Bathurst v Mine [2016] NSWCA 213 Tyne v UBS AG (No 2) (2017) 250 FCR 341; [2017] FCAFC 5 Williamson v Elders Rural Services Australia Ltd [2019] NSWCA 137 Texts Cited: Evidence (ALRC Report 38, 1987) KR Handley, "Res Judicata: General Principles and Recent Developments" (1999) 18 Aust Bar Rev 214 Ritchie's Uniform Civil Procedure NSW S Odgers, Uniform Evidence Law (14th edn, 2019, Thomson Reuters) Category: Procedural and other rulings Parties: Sayour Holdings Pty Ltd atf Sayour 2 Family Trust (Plaintiff) Combined Projects (Arncliffe) Pty Ltd (First Defendant/Cross-Claimant to First Cross-Claim) Deiri Nominees Pty Ltd (Second Defendant/Second Cross-Defendant to First Cross-Claim) Fouad Deiri (Third Defendant/First Cross-Defendant to First Cross-Claim) Konstructions Pty Ltd (Third Cross-Defendant to First Cross-Claim) Zapphire Investments Pty Ltd (Fourth Cross-defendant to First Cross-Claim) Deicorp Properties Pty Ltd (Fifth Defendant to First Cross-Claim) Deicorp Constructions Pty Ltd (Sixth Cross-defendant to First Cross-Claim) Representation: Counsel: