The eighth and ninth plaintiffs, Aramax Nominees Pty Ltd and Primax Nominees Pty Ltd, seek leave pursuant to s 64 of the Civil Procedure Act 2005 (NSW) to amend the current Commercial List Statement in these proceedings.
There were originally nine plaintiffs in these proceedings. Mr David James was the first plaintiff.
The defendants are Australia and New Zealand Banking Group Limited ("ANZ") and Mr Paul Merryweather and Mr Greg Hall, who are the receivers and managers of TLT Nominees Pty Ltd and Newcastle Liquor Wholesalers Pty Ltd, both of which companies are now in liquidation. I will refer to Messrs Merryweather and Hall together as "PwC", as they are partners of PricewaterhouseCoopers.
Over six years ago, on 16 May 2014, Mr James consented to judgment in ANZ's favour in separate proceedings [1] in the sum of a little under $14 million. ANZ's claims against Mr James were under guarantees given by Mr James in respect of debts owed to the ANZ by companies associated with Mr James.
In 2016, Mr James sought leave under s 237 of the Corporations Act 2001 (Cth) to bring certain claims against ANZ and PwC on behalf of various companies including Liquor National Pty Ltd (in liquidation) (Receivers and Managers appointed) and Wine National Pty Ltd (in liquidation) (Receivers and Managers appointed).
On 16 June 2016, by consent, that application was dismissed by Ball J who, on 23 June 2016, made a lump sum costs order against Mr James. [2] Mr James was subsequently refused leave to extend time to seek leave to appeal against that costs order. [3]
On 17 October 2016, Mr James filed a notice of motion in the same proceedings, seeking to recast his claims against ANZ and PwC as personal claims. The Proposed Amended Commercial List Statement Mr James sought to file at that time also listed Aramax and Primax as parties.
I dismissed that application on 9 March 2017. [4]
On 17 March 2017 I dismissed the proceedings so far as they concern a claim by Mr James. I also made orders providing for Aramax and Primax to circulate a Proposed Amended Commercial List Summons and Commercial List Statement.
On 15 March 2018 the Court of Appeal dismissed an appeal from my decision. [5]
On 14 September 2018 the High Court dismissed Mr James' application for special leave to appeal from that decision.
The proposed Aramax and Primax claims in these proceedings were continually adjourned by consent pending the determination of Mr James' appeal and High Court application, referred to above, as well as a subsequent application by Mr James to have the 16 May 2014 consent judgment set aside. That application was dismissed by Ball J on 5 July 2019. [6] On 1 June 2020 the Court of Appeal dismissed an application for leave to appeal from that decision. [7]
It is against that background that Aramax and Primax seek leave to amend the subject proceedings to constitute themselves as the only plaintiffs and to propound their own claim against ANZ and PwC.
ANZ and PwC do not dispute that, despite the history I have set out, it is open to Aramax and Primax to continue these proceedings as the sole plaintiffs.
However, ANZ and PwC submit that, in light of the history I have set out, it is important that the Proposed Amended Commercial List Statement contain only allegations relevant to the claim to be brought by Aramax and Primax and to not contain irrelevant allegations.
I agree. In particular, allegations relevant only to any claims by Liquor National or Wine National or by Mr James personally should not appear in Aramax's and Primax's claims.
The Amended Commercial List Statement alleges that the sole director and shareholder of each of Aramax and Primax is Mr John James, the brother of Mr David James.
ANZ's and PwC's submissions take issue with 12 paragraphs in the Proposed Amended Commercial List Statement.
The first two are paragraphs C22 and C32 in which the allegation is made that Mr David James entered identified guarantees.
On behalf of Aramax and Primax it was submitted, without elaboration, that these paragraphs "set out facts which are relevant to the conduct of [ANZ and PwC] to which their claims relate" and "do not relate to any claim by Mr James".
However, the guarantees are not subsequently referred to in the Proposed Amended Commercial List Statement [8] and I fail to see how they can be relevant to the claims now sought to be advanced.
Next, ANZ and PwC refer to paragraphs C95 and C118 in which it is alleged that the receivers appointed by ANZ "interfered with the rightful occupation" of warehouses by Aramax and Primax and with the occupation of those premises by "those having authority" from those companies; including Liquor National, Wine National and Mr James.
The submissions provided on behalf of Aramax and Primax did not explain why those allegations are relevant to the claim that Aramax and Primax seek to make out. I cannot see their relevance.
ANZ and PwC then refer to paragraph C139 of the Amended Commercial List Statement. That clause alleges that on 20 August 2020 the receivers removed "the aforesaid property of Mr James" and of "DH" at an identified property and provides particulars by reference to "paragraphs 82 and 83 above". The difficulty with this is that the paragraph in the List Statement formerly identifying "DH" is deleted from the proposed Amended Commercial List Statement, as are paragraphs C82 and C83.
Next, ANZ and PwC refer to paragraph C141. The complaint in respect to that paragraph is that the reference to a number of named companies has been deleted, evidently inconsistently with the inclusion of those names in the subsequent paragraph (C142) which deals with questions of causation.
On behalf of Aramax and Primax it is accepted that that clause needs to be recast.
Finally, ANZ and PwC refer to paragraphs C145A and C145B of the Proposed Amended Commercial List Statement.
Paragraph C144C deals with the loss that Aramax and Primax claim to have suffered as a result of the conduct complained of at paragraphs C144A and C144B. Paragraphs C145A and C145B allege that by reason of the same conduct, Liquor National and Wine National were unable to continue to use the services of Aramax and Primax. I cannot see how those allegations add anything to the claims made by Aramax and Primax themselves in the preceding paragraphs.
As ANZ pointed out, it is not for ANZ, or the Court, to redraft the Proposed Amended Commercial List Statement for Aramax or Primax. [9]
I am not prepared to give Aramax and Primax leave to file an Amended Commercial List Statement in the form proposed.
I order that the notice of motion filed on 11 September 2020 by Aramax and Primax be dismissed with costs.
Any further application by Aramax or Primax to amend the Commercial List Statement should be accompanied by circulation of a Proposed Amended Commercial List Summons.
The matter is listed for further directions on 23 October 2020.
[2]
Endnotes
2013/306563.
James v Australia and New Zealand Banking Group Limited [2016] NSWSC 833.
James v Australia and New Zealand Banking Group Limited [2017] NSWCA 84.
James v Australia and New Zealand Banking Group Limited (No 2) [2017] NSWSC 216.
James v Australia and New Zealand Banking Group Limited [2018] NSWCA 41.
Australia and New Zealand Banking Group Limited v James (No 3) [2019] NSWSC 832.
James v Australia and New Zealand Banking Group Limited [2020] NSWCA 101.
Apart from in five deleted paragraphs: C191, 192, 216, 217 and 218.
Eg see McGuirk v The University of New South Wales [2009] NSWSC 1424 at [35] (Johnson J): "It is not the function of the Court to draw or settle the party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist."
[3]
Amendments
19 October 2020 - Coversheet amended.
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Decision last updated: 19 October 2020
Parties
Applicant/Plaintiff:
Aramax Nominees Pty Ltd and Primax Nominees Pty Ltd
Respondent/Defendant:
Australia and New Zealand Banking Group Limited & Ors