Aon Risk Services Australia Ltd v Australian National University

The present application for leave to amend

1. On 15 September 2023, the plaintiff served an application for leave to file a further amended originating process and an amended statement of claim. That application was heard in the Corporations Motions List on 25 September 2023, by which time the proposed forms of further amended originating process and amended statement of claim were annexed to an affidavit of the plaintiff's solicitor sworn on 23 September 2023. The proposed amendments removed the plaintiff's claims for a declaration that the third and fourth defendants had breached their fiduciary duties owed to the Company, and for equitable compensation against the third and fourth defendants for alleged breaches of fiduciary duty owed to the plaintiff. The defendants did not object to those deletions. Nor did the defendants object to amendments that merely tidied up the existing pleadings without altering the substance of the existing allegations or claims. The defendants did object to the following amendments: 1. the inclusion of the following prayer 9(a) in the plaintiff's claims for relief set out in the proposed further amended originating process and amended statement of claim: "a. pursuant to s 233 of the Act, that: i. resolution 3 passed by the Board of the [Company] at the meeting of directors on 1 September 2022 purportedly raising a special levy to fund legal costs, and any further resolution at a foreshadowed meeting of directors on 25 September 2023 for a special levy to fund legal costs, by set aside; and ii. the Third, Fourth and Fifth Defendants be solely liable for the legal costs of the [Company] in these proceedings; iii. the Cross-Summons filed herein be discontinued" 1. the inclusion of the following prayer 9(c) in the plaintiff's claims for relief set out in the proposed further amended originating process and amended statement of claim (in addition to the claim in the existing pleadings for an ordering winding up the Company pursuant to ss 233 or 461(1)(e), (f) or (k) of the Corporations Act): "c. pursuant to ss 90-15 and 90-20 of Schedule 2 of the Corporations Act, requiring the liquidator of the [Company] to: i. Apply for appointment as a voluntary administrator of the [Company] pursuant to s 436B of the Corporations Act; and ii. Investigate and, if thought appropriate, implement the conversation of the [Property] into: 1. a single lot comprised by [Units 1 and 2 at 21 Quinton Road] and associated common property; and 2. a company title or strata title plan of subdivision comprised by [Units 1 and 2 at 19 Quinton Road] and associated common property, or, in the alternative to (1) and (2), 3. a strata title plan of subdivision comprised by all of the real property owned by the [Company] …" 1. the proposed deletion of that part of paragraph 23 of the statement of claim, which pleaded that: "Where [the plaintiff] was not entitled to vote because of a conflict of interest …" as the basis for the contention in the remainder of paragraph 23 that the plaintiff was in a position of special vulnerability vis-à-vis the third and fourth defendants, who therefore owed fiduciary duties to her; 1. the following amendments of the pleading in paragraph 32 of the statement of claim of the matters constituting the alleged oppression (amendments to the existing paragraph 32 are marked up below): "d. in refusing to exercise the power of the company to repair [Units 1 and 2 at 21 Quinton Road] … when [the Company] approved other necessary repairs to [Units 1 and 2 at 19 Quinton Road]; e. in treating [the plaintiff] in a manner inconsistent, selective and unfair enforcement of the House Rules in a manner that was unfair as between [the plaintiff] compared with when compared with [the third, fourth and fifth defendants], including as to the authorization of renovations; f. … g. in excludinged of [the plaintiff] from management, including decisions regarding appointment of managing agents and company lawyers; h. in refusing to provide [the plaintiff] with company books and records on request; i. in using [the Company's] funds to defend these proceedings, which are in substance, a shareholder dispute; j. in harassing, and permitting the harassment of, [the plaintiff] and her family" 1. the addition of the following claim for relief against the second defendant in proposed prayer 11 of the claims for relief set out in the proposed further amended originating process and amended statement of claim, in the alternative to the plaintiff's claims for declaratory relief concerning the transfer of the second defendant's shares and for an order compelling the Company to register the transfer of those shares to the plaintiff: "a. a declaration that the purchase price paid by the Plaintiff to the Second Defendant in respect of shares numbered 4503 to 6002 in the [Company] is money had and received by the Second Defendant to the use of the Plaintiff; and b. an Order requiring the Second Defendant to disgorge to the Plaintiff the purchase price paid in respect of shares numbered 4502 to 6002 in the [Company]."
2. In support of the application for leave to amend, the plaintiff relied on affidavits sworn by her solicitor on 17 September and 23 September 2023. In the first of those affidavits, the plaintiff's solicitor referred to documents produced by the defendants in early to mid-August 2023 in response to notices to produce issued by the plaintiff, and to affidavits served by the first and third to fifth defendants on 6 September 2023 in accordance with the pre-trial directions made by the Court on 3 July 2023 (which the plaintiff's solicitor refers to as the "new affidavit evidence"). The plaintiff's solicitor deposed that she had briefed a senior junior counsel on 29 August 2023 to lead the junior counsel already briefed for the plaintiff, and that: "Counsel and me, having reviewed the new affidavit evidence and having conducted a high-level initial review of the documents recently obtained by way of the notices to produce and subpoenas issued in these proceedings, now consider that amendments are required to the pleadings. The proposed [further amended originating process and amended statement of claim] have been prepared principally to reflect the recently-served evidence and disclosed material, as well as to bring the pleadings into line with the Plaintiff's evidence served on 7 August 2023. In particular, the amendments are designed to address some additional conduct which has come to light in the disclosed material and recent evidence which the Plaintiff alleges is oppressive, and to narrow the case where possible, in order to focus on the real issues in dispute in the proceedings. Finally, the proposed amendments provide for the eventuality that the Court may refuse to register the share transfer of shares 4503 to 6002. If this occurs, the sale to the Plaintiff of the shares will have failed. Consequential relief is sought in case of that eventuality."
3. That was the extent of the evidence purporting to explain the substance or timing of the amendments.
4. The proceedings are listed for final hearing commencing on 3 October 2023 with an estimated hearing time of three to four days. At the time of the hearing of the plaintiff's application for leave to amend, all of the parties' evidence had been served, save for the plaintiffs' evidence in reply, which was late. I made an order extending the time for service of that evidence until 4:00pm on 25 September 2023.
5. At the conclusion of the hearing on 25 September 2023, I dismissed the plaintiff's application for leave to amend to the extent that it concerned those five categories of contentious amendments, on the basis that I would publish my reasons for doing so as soon as practicable. These are those reasons.

Proposed prayer 9(a) of the further amended originating process and proposed paragraph 32(i) of the amended statement of claim

1. In relation to proposed prayer 9(a) of the further amended originating process and proposed paragraph 32(i) of the amended statement of claim, counsel for the plaintiff accepted that the plaintiff had been aware of the resolution referred to in proposed prayer 9(a)(i) since shortly after it was passed on 1 September 2022. As was submitted on behalf of the first, third and fourth defendants, the plaintiff was also well aware that the Company was the only active defendant in the proceedings at all times up until 3 July 2023. The proceedings could not fairly have been described as a "shareholder dispute" prior to 3 July 2023. Thus, proposed prayer 9(a) of the further amended originating process and proposed paragraph 32(i) of the amended statement of claim raise new issues, and are not amendments that are necessary to be made for the purpose of determining the real questions presently raised by the proceedings. [1]
2. Moreover, there is no real explanation for the plaintiff's delay in seeking leave to make these proposed amendments. Contrary to the evidence of the plaintiff's solicitor referred to at [15] above, neither the substance nor the timing of the proposed amendments is capable of being explained by documents produced by the defendants in August 2023 or by the defendants' evidence served on 6 September 2023. I accept the submission that the first, third and fourth defendants would be prejudiced if the plaintiff were granted leave to amend her claim just one week prior to the final hearing by seeking to make the third and fourth defendants liable for the whole of the costs of the proceedings incurred by the first defendant since the time when the plaintiff chose to commence the proceedings against the first and second defendants claiming only the relief referred to at [7] above. For that reason, a grant of leave to amend in respect of proposed prayer 9(a) of the further amended originating process and proposed paragraph 32(i) of the amended statement of claim would be contrary to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW), and contrary to the dictates of justice in s 58 of that Act to which the Court is required to have regard when determining an application for leave to amend a pleading.

Proposed prayer 9(c) of the further amended originating process

1. In relation to proposed prayer 9(c) of the further amended originating process, counsel for the plaintiff informed the Court that the intention of the amendment is that a liquidator would be appointed on terms requiring the liquidator to make the application under s 436B of the Corporations Act referred to in proposed prayer 9(c)(i), and then, in their capacity as administrator (assuming that the s 436B application is successful), to undertake the investigation required by proposed prayer 9(c)(ii).
2. I accept the submissions made on behalf of the first, third and fourth defendants that, if this proposed amendment is allowed, they will wish to adduce expert evidence of the complexity and cost that would be involved in an administrator investigating the subdivision of the Company's property in the manner envisaged in proposed prayer 9(c)(ii), including addressing fire safety issues, heritage issues, council requirements for the necessary development application. According to the evidence of the fourth defendant's solicitor, which was not disputed by the plaintiff, these are not matters that have been addressed in the plaintiff's evidence served to date. I also accept the submissions made on behalf of those defendants that there is insufficient time for them to adduce that evidence in time for the commencement of the hearing in one week. The plaintiff does not propose that the hearing be vacated in order to ameliorate the prejudice to the defendants that would otherwise be caused by this proposed amendment.
3. Contrary to the evidence of the plaintiff's solicitor referred to at [15] above, neither the substance nor the timing of proposed prayer 9(c) is capable of being explained by documents produced by the defendants in August 2023 or by the defendants' evidence served on 6 September 2023. This proposed amendment implicitly accepts the problems with the existing prayers 9(b), 9(c) at [12] above and 10 referred to at [13] above. In my view, those problems are so obvious and so fundamental that existing prayers 9(b), 9(c), and 10 do not raise any real question about whether the Property owned by the Company should be divided between, and distributed to, shareholders. The defendants have made forensic decisions not to adduce expert evidence concerning the feasibility or cost of any subdivision on the basis of those fundamental problems in the existing pleadings. The plaintiff now seeks to avoid those problems by amending to include a claim for an order that would require any liquidator appointed by the Court to investigate subdivision (as administrator). The plaintiff has had an opportunity to frame any claim for relief seeking to bring about a subdivision of the Property, and is responsible for the way in which the existing prayers 9(b), 9(c), and 10 were framed. [2] Neither the overriding purpose nor the dictates of justice require that the plaintiff should be afforded an opportunity to reframe those claims for relief without offering any explanation for the delay, and at the expense of the defendants who would be deprived of the opportunity to adduce the evidence on which they would wish to rely in relation to those proposed amended claims. I would add that, any vacation of the hearing dates in order to avoid that prejudice to the defendants, would merely inflict another prejudice on the defendants - the prolongation of the strain inevitably associated with litigation between persons who are not only shareholders in the Company, but neighbours. That is not a prejudice that can be cured by any costs order. [3]
4. Those are sufficient reasons to refuse leave in relation to proposed prayer 9(c) of the further amended originating process. It is not necessary to consider whether or not the Court's power under s 90-15 of Schedule 2 to the Corporations Act arguably extends to making a direction of the kind proposed.

Proposed deletion of the chapeau to paragraph 23 of the statement of claim

1. The first defendant objected to the plaintiff's proposed deletion of the chapeau to paragraph 23 of the statement of claim on the basis that it constitutes an admission that the plaintiff had sought leave, and should not be granted leave, to withdraw.
2. Counsel for the plaintiff submitted that the chapeau - which reads "Where [the plaintiff] was not entitled to vote because of a conflict of interest" - was not an admission, but merely a statement that the plaintiff had been told by the defendants that she had a conflict of interest, or alternatively a statement of the legal position. Those two submissions are inconsistent. The second submission raises unanswered questions about why the plaintiff is now pressing to withdraw the statement. In any event, neither submission accurately reflects the substance of the statement. In my view, the statement is a statement of the plaintiff's acceptance that she did in fact have a conflict of interest and was therefore not entitled to vote. That acceptance is the basis on which the plaintiff went on to plead in the balance of paragraph 23 that she was in a position of special vulnerability vis-à-vis the other directors of the Company and that those directors (the third and fourth defendants) therefore owed a fiduciary duty to the plaintiff when exercising their powers as directors. The uncontentious amendments include the deletion of the plaintiff's claims that the third and fourth defendants are liable to compensate her for alleged breaches of fiduciary duties said to have been owed to her. However, the plaintiff's acceptance that she had a conflict of interest and was not entitled to vote appears, on the face of the existing pleadings, to be an admission that is adverse to her interest in the proceedings insofar as the plaintiff claims in paragraph 32(g) of the existing statement of claim to have been excluded from certain decisions made by the Company. Neither the evidence of the plaintiff's solicitor, nor the submissions made by counsel for the plaintiff, identified any reason why it would be in the interests of justice to grant leave to the plaintiff to withdraw the admission. [4] The admission will not assist the defendants if, upon closer analysis, it turns out to be incorrect as a matter of law in relation to the meetings or other processes by which the Company made the decisions relevant to paragraph 32(g). At present, the position is a little unclear by reason of the plaintiff's failure to plead or particularise the material facts relied on in support of the allegation in paragraph 32(g) of the existing statement of claim.

Proposed amendments to paragraphs 32(d), (e), (g), (h)-(j) of the statement of claim

1. The substance of the proposed amendments is identified at [14(4)] above.
2. The plaintiff has not pleaded the material facts on which she relies in support of each element of oppression alleged in those proposed sub-paragraphs of paragraph 32 of the statement of claim. The particulars to the whole of paragraph 32 simply refer the defendants to all of the plaintiff's affidavits. The defendants' solicitors corresponded with the plaintiff's solicitors in an effort to identify the basis of the oppression allegations. The plaintiff's solicitors responded on 19 September 2023 by identifying certain paragraphs of the plaintiff's affidavits that have been served to date, and reserving the right to provide further particulars in the form of the plaintiff's reply evidence (which had not then been served, and had not all been served at the time of the hearing of the amendment application) and after completion of the plaintiff's review of documents produced by the defendants. As the defendants submitted, it is inappropriate and unfair to the defendants for the plaintiff to propound a partially particularised case one week prior to the final hearing, reserving to herself the right to expand the particulars through her late-served reply evidence and following her review of documents that were produced by the defendants in response to notices to produce issued by the plaintiff. That approach is wholly inconsistent with the fundamental purpose of pleadings, which is to put the defendants on notice of the case that they must meet. It is also unsatisfactory for the Court to have to revert to studying the evidence in order to identify for itself the material facts relied on by the plaintiff in support of the oppression claim, and the extent to which those facts are in dispute. To the extent that the proposed amendments arise out of documents produced by the defendants, there is no evidence of any reason why the plaintiff could not have issued notices to produce at an earlier stage of the proceedings so as to facilitate any amendment application being propounded in a timely manner prior to the final hearing. For those reasons, a grant of leave to amend in respect of paragraphs 32(d), (e), (g), (h)-(j) of the statement of claim would be inconsistent with the overriding purpose and with the dictates of justice.

Proposed prayer 11

1. Counsel for the plaintiff acknowledged that there was no reason why the plaintiff could not have claimed the relief now sought to be included in proposed prayer 11 when the proceedings were first commenced. However, counsel submitted that "in the event the plaintiff wasn't successful as the pleadings were originally filed, something would have had to have been done anyway" as between the plaintiff and the second defendant, and that "all the prayer 11 seeks to do is just to make clear what the consequences of the plaintiff being unsuccessful".
2. I reject those submissions. Nothing would "have to be done" as between the plaintiff and the second defendant unless and until the plaintiff made some claim for relief against the second defendant. Proposed prayer 11 of the proposed further amended originating process introduces for the first time a claim for relief against the second defendant.
3. I accept the second defendant's submission that, if the plaintiff were to be granted leave to amend in respect of proposed prayer 11, the second defendant will not be able to prepare her defence and the evidence on which she would wish to rely in support of that defence. Vacating the hearing dates to accommodate the amendment in proposed prayer 11 would have the prejudicial consequences for the other defendants that I have already described above.
4. The solicitor for the second defendant raised the possibility of proposed prayer 11, if the subject of a grant of leave to amend, might be determined separately from and after the determination of all other questions in the proceedings. Although the plaintiff had not made any application for an order for separate determination of the proposed claim for relief in proposed prayer 11, counsel for the plaintiff embraced the idea of separate determination as the answer to the problems that would otherwise arise as a result of the very late amendment. However, counsel for the plaintiff was unable to assist the Court with submissions about whether it would be appropriate to determine the proposed claim for relief in prayer 11 as a separate question in the circumstances of this case. Very real doubts about the appropriateness of that course emerged during the course of the hearing of the plaintiff's amendment application when it became apparent that both the plaintiff and the second defendant would be likely to give evidence in relation to factual issues relevant to proposed prayer 11, and in relation to other factual issues in the case. It was disclosed to the Court that the plaintiff has subpoenaed the second defendant to give evidence in support of the plaintiff's case against the other defendants. In short, the plaintiff has failed to discharge her onus of demonstrating the appropriateness of a grant of leave to amend in respect of proposed prayer 11 coupled and with an order that this claim for relief be determined separately from other questions in the proceedings. [5]
5. It follows that any grant of leave to amend in respect of proposed prayer 11 would prejudice either the second defendant (by depriving her of a fair opportunity to defend the proposed claim at the hearing commencing on 3 October 2023) or the other defendants (by adjourning the final hearing, thereby prolonging the strain of the litigation). It would not be consistent with the overriding purpose or the dictates of justice to expose the defendants to these prejudices in circumstances where the plaintiff has had a fair opportunity to frame her claims for relief, and there is no explanation for her delay in seeking to propound this claim against the second defendant. I accept that this may involve some prejudice to the plaintiff if she fails in her claims against the other defendants, and if the doctrines of Anshun estoppel, issue estoppel or res judicata preclude her from later claiming relief against the second defendant. Counsel for the plaintiff alluded to this possibility, but was unable to develop the submission further. I do not consider that the possibility of prejudice to the plaintiff warrants a grant of leave to amend, with the resulting prejudice to the defendants, in all the circumstances that I have described above. As Gummow, Hayne, Crennan, Kiefel and Bell JJ said in Aon at [94] (referring with approval to Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894): "Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants."

Conclusion

1. For all of the reasons above, I made orders at the conclusion of the hearing on 25 September 2023 dismissing the plaintiff's application for leave to amend insofar as it concerned the amendments listed at [14] above. Leave was granted in respect of the balance of the proposed amendments, which were not opposed by any of the defendants.

Endnotes

1. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [71]-[72] and [82]-[83] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
2. UBS AG v Tyne as trustee of the Argot Trust [2018] HCA 45 at [38] (Kiefel CJ, Bell and Keane JJ).
3. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [99]-[101] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
4. See, for example, H & D Retail Pty Ltd v Trans MS Pty Ltd [2021] NSWSC 87 at [10]-[14] (Stevenson J), and the authorities there referred to.
5. See Arch Underwriting Agency (Australia) Pty Ltd v Lexon Insurance Pte Ltd [2020] NSWSC 580 at [8] (Ball J), and the authorities there referred to. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2023