Australian Agrivision Pty Ltd v Wolstenholme

1. The second respondent, Alexander James Anderson, applies by way of a further amended interlocutory application for leave to file an amended concise statement in response and a notice of cross-claim. Mr Anderson accepts that in the event he is granted leave to file the notice of cross-claim, the listing of the final hearing on 9 and 10 February 2026 in Canberra will have to be vacated.
2. The applicant is Australian Agrivision Pty Ltd (Agrivision). It sues as the assignee of the rights of Capital Bridging Finance Pty Ltd (Capital).
3. Agrivision avers that Capital lent more than $5 million to B&T Investment Group (ACT) Pty Ltd (B&T) under a written loan agreement dated 14 June 2024. It alleges that the first respondent, Tara Louise Wolstenholme, and the second respondent, Mr Anderson, were joint and several guarantors of B&T's obligations under the loan agreement pursuant to guarantees given by them, also dated 14 June 2024. Agrivision alleges that B&T defaulted under the loan agreement entitling it to repayment of the outstanding balance. Some money has been received from the receivers and managers of B&T's property, leaving the balance to be claimed from the guarantors, being the respondents. B&T is now in liquidation.
4. Agrivision avers that on or about 8 November 2024, Capital assigned the claims on the guarantees to it. Agrivision thus seeks a judgment against the respondents for the unpaid balance of the total amount advanced under the loan as well as certain costs, expenses and outgoings plus interest.
5. Mr Anderson's existing concise statement in response, which I will refer to as his defence for convenience, is hard to make sense of. Doing the best I can, it seems to be to the following effect.
6. First, he does not dispute the loan agreement between Capital as lender and B&T as borrower. However, he pleads that Capital and Agrivision's "invocation of default did not follow due process". He says that Capital and Agrivision "failed to provide a valid notice and did not allow B&T to correct the alleged default". He also pleads that Capital and Agrivision "failed to comply with the original terms of the Loan Agreement and violated key clauses".
7. Secondly, Mr Anderson does not dispute that he executed the guarantee. However, he says that "reliance on the guarantee cannot be substantiated". In that regard, he says that "unlawful material variations" were made to the loan agreement by Capital and Agrivision.
8. Thirdly, Mr Anderson says that although the loan was advanced, Capital and Agrivision's conduct "disrupted B&T's financing processes" and that Agrivision as the assignee "has no rights to recover a debt" where Capital and Agrivision "contributed to the events of default".
9. It is apparent from that brief synopsis that it is hard to say just what Mr Anderson's defence is. It appears that Agrivision will have to prove most of the elements of its cause of action.
10. Mr Anderson's proposed amended concise statement in response is possibly more difficult to follow than the unamended version. Amongst other defects, it has references to paragraph numbers of Agrivision's amended concise statement that make no sense. For example, paragraph 1 of the amended concise statement avers that Agrivision is a corporation within the meaning of the Corporations Act 2001 (Cth) and has capacity to sue and be sued. The proposed response to that paragraph is that Mr Anderson:
    1. admits paragraph 1 insofar as it pleads the existence of the Loan Agreement and Guarantee;
    2. does not plead to the balance of paragraph 1 of the [amended concise statement] as it contains no allegation against him.
11. Paragraph 1 of the amended concise statement does not plead the existence of a loan agreement or a guarantee. Mr Anderson's proposed response is meaningless.
12. I cite that instance as merely one example. The rest of the proposed amended concise response suffers from the same and other defects.
13. In the circumstances, I refuse Mr Anderson leave to file the amended concise response. It may be that a further version of the amended concise response will justify leave to amend being granted, but that will be a matter for another day.
14. Turning now to the question of leave to file a notice of cross-claim, the first difficulty is that no proposed notice of cross-claim has been provided by Mr Anderson. Rather, a proposed concise statement of cross-claim has been provided. I intend to decide the question of leave with reference to that concise statement, recognising that if it justifies leave then it would be a simple matter to prepare a notice of cross-claim to accompany it.
15. The proposed cross-claim pleads claims against three proposed cross-respondents, namely Agrivision, Capital and Damien Simonfi. Three claims are pleaded conditionally on Mr Anderson's defence to Agrivision's claim on the guarantee failing, namely:

(1) that Capital breached the loan agreement;

(2) that Capital engaged in misleading or deceptive conduct contrary to the Australian Consumer Law (ACL) or the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act); and

(3) that Capital engaged in unconscionable conduct contrary to the ACL or the ASIC Act.

1. Rule 15.04 of the Federal Court Rules 2011 (Cth) provides that a notice of cross-claim must be filed at the same time as the filing of, relevantly, a respondent's concise statement in response. Rule 15.05(1) provides that a respondent who wants to file a notice of cross-claim, but has not complied with r 15.04, must apply to the Court for leave to file a notice of cross-claim. Rule 15.05(2) provides that such an application must be accompanied by an affidavit stating "briefly but specifically, the nature of the cross-claim and its relationship to the subject matter of the proceeding" and "why the notice of cross-claim was not filed in accordance with rule 15.04". Also, the application must be accompanied by "a draft notice of cross-claim that complies with rule 15.02".
2. The principles applicable to the granting of leave to file a cross-claim out of time are relevantly the same as those that apply in the case of applications for leave to amend. Relevant considerations include the extent of the delay, whether an acceptable explanation has been provided for the delay, any prejudice to the other party or parties occasioned by the delay, the merits or strength of the proposed cross-claim, the degree of connection between the proposed cross-claim and the subject matter of the principal proceeding, and the desirability that all disputed matters between the parties connected with the subject matter of the proceedings be dealt with in a single hearing: Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; 359 ALR 564 at [87] per Wigney J.
3. Mr Anderson faces considerable difficulty in persuading the Court that he should have leave to file his proposed cross-claim.
4. First, despite the express requirement of r 15.05(2)(a)(ii), there is no explanation why the cross-claim was not filed at the correct time, or why it has only been brought forward now.
5. Secondly, the delay in seeking to file the cross-claim is considerable. It is worthwhile having regard to the history of the proceeding in order to understand that delay, and the prejudice that is likely to be created.
6. Capital commenced the proceeding by concise statement on 1 October 2024. On 20 December 2024, Agrivision was substituted as the applicant in reliance on the assignment from Capital. Mr Anderson filed his concise statement in response on 26 February 2025. Ms Wolstenholme filed her concise statement in response on 11 March 2025. Agrivision filed a reply on 28 March 2025.
7. On 14 April 2025, I dismissed an application by Mr Anderson to stay the proceeding pending the determination of a proceeding in the Federal Circuit and Family Court of Australia (Division 1). That was for the reasons published as Australian Agrivision Pty Ltd v Wolstenholme (Stay) [2025] FCA 364.
8. The parties filed their evidence and then on 18 July 2025 I listed the matter for hearing on 9 and 10 February 2026 in Canberra. Detailed programming orders were made dealing with preparation for the hearing. The next steps in that programme are due to be taken in the middle of January 2026.
9. On 23 September 2025, Nicola Craven of Vintage Commercial Law filed a notice of acting for Mr Anderson. He had previously been unrepresented.
10. The present interlocutory application prior to amendment was filed on 10 November 2025.
11. The delay in seeking to file the cross-claim is accordingly the period between 26 February 2025 and 10 November 2025, ie more than eight months. That is considerable and, as mentioned, it is unexplained. Also, Mr Anderson sought to bring the cross-claim forward nearly four months after the proceeding had been listed for final hearing.
12. Thirdly, there will be considerable prejudice to Agrivision in the event that I grant leave to Mr Anderson to file his cross-claim. The principal aspect of that prejudice is the delay that will inevitably result before Agrivision's claims against Mr Anderson and Ms Wolstenholme are determined. As mentioned, it is common ground that in the event that leave to file a cross-claim is granted the hearing in February 2026 will have to be vacated. Two new parties will be impleaded in the case, and it may consequently take a considerable period of time for the pleadings in relation to those parties as well as their evidence and any other interlocutory issues to be resolved prior to the matter again being ready for trial.
13. Insofar as any prejudice to Mr Anderson is concerned, I accept that if he is denied the opportunity to advance viable cross-claims, that would amount to significant prejudice. The trouble though, is that I have no basis to conclude that the cross-claims are viable.
14. Fourthly, in that regard I am not satisfied that the claims that are pleaded in the proposed concise statement of cross-claim have any merit. Certainly, no evidence has been adduced in support of them so at this stage they have the status of mere assertion. But even as asserted, assuming that the underlying facts can be proved, it is not clear that they have any merit. The written submissions no behalf of Agrivision detail problems with the claims as pleaded. I accept those submissions. Mr Anderson's late changes to the proposed concise statement of cross-claim in response to Agrivision's submissions do not particularly assist. Also, none of the claims is pleaded clearly enough or substantiated to justify leave being granted in respect of some claims and not others.
15. The claims are also confusingly pleaded. They are hard to follow. They do not meet the requirements of a pleading. To allow the proposed statement of cross-claim to be filed will likely lead to further interlocutory disputation about pleadings.
16. Fifthly, although the claim in the principal proceeding and the proposed cross-claims broadly arise out of the same events, the proposed cross-claim is conditional on the principal claim succeeding, ie they do not overlap in entirety and the cross-claim is not a defence to the claim. Further, to refuse leave would not be to shut the door on all the claims in the cross-claim; they will still be able to be brought, albeit separately in another proceeding. It may be that the cross-claim against Agrivision will be precluded by Anshun estoppel considerations (ie with reference to Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589), but the claims against the other proposed cross-respondents will likely be unaffected.
17. Sixthly, the timely, cost-effective and efficient conduct of modern civil litigation takes into account wider public interests than those of only the parties to the dispute: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [95]. It would be wasteful of the Court's resources and in that way unfair on other litigants who have been waiting for their cases to be heard for the trial in this matter to have to be vacated at such short notice.
18. In all the circumstances, I am not satisfied that Mr Anderson should have leave to file his proposed cross-claim.
19. In the result, the interlocutory application should be dismissed with costs. I will order accordingly.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.