Currawinya Pty Limited v Adam; Adam v Currawinya Pty Limited

Supreme Court of NSW|2011-03-15|Before: Slattery J, Mr J

Judgment 1This is my third judgment in these proceedings. My first two judgments substantially resolved the issues on the Statement of Claim and the Cross Claim: Currawinya Pty Limited v Adam; Adam v Currawinya Pty Ltd [2010] NSWSC 666 ; Currawinya Pty Limited v Adam; Adam v Currawinya Pty Limited [No. 2][2011] NSWSC 1. But some aspects of this litigation still remain unresolved. 2The second judgment foreshadowed that the Court would order mediation between the parties under Civil Procedure Act 2005, s 26, subject to hearing submissions from the parties: Currawinya Pty Limited v Adam; Adam v Currawinya Pty Limited [No. 2][2011] NSWSC 1 at [164]. Since then the parties have indicated a willingness to engage in mediation. Orders for mediation are made among the orders at the conclusion of this judgment. It is desirable that mediation take place in the short to medium term. The parties appear to agree upon the mediator to conduct the mediation. 3This judgment deals with matters that must still be resolved. The first matter is Currawinya's motion to amend the Statement of Claim and the Defence to Cross Claim and to reopen its case to seek to rely upon a resolution of Currawinya's directors of 19 August 2010. The second is to provide for the disposal of the remaining relief and questions of costs. 4This judgment uses the same terminology to describe people and events that the first and second judgments use.

Costs and Other Relief 26It is inefficient to determine issues of costs or to determine the balance of relief sought on the Cross Claim under Corporations Act 2001, s 233 until the Court resolves the validity of the 19 August 2010 motion and the parties have attempted mediation. Although it is theoretically possible to make a determination of costs up to 19 August 2010 that seems to me to be an artificial division. The issue of costs is best looked at when all other issues that remain are resolved. That is the course that I will take. 27The relief undetermined on the Cross Claim is the Corporations Act 2001, s 233 relief. If the mediation is unsuccessful that will relief will be determined. The orders and directions that the Court makes, assume that the mediation will be completed within a limited time. If not the proceedings will be re-listed for determination of the issues of Corporations Act 2001, s 233 relief. If the parties cannot agree now on the declarations and other orders to be made at this stage and if they want them made now, before the mediation then I will publish the orders I propose to make. Obviously in light of these reasons any declarations about entitlements to graze on Currawinya will only be made up to 19 August, 2010.

Orders 28Accordingly, I make the following orders:-

Grant leave to the plaintiff, Currawinya to re-open its case and to amend its pleadings in accordance with Orders 1 and 2 of the plaintiff's motion of 30 August 2010.
Order the plaintiff to file any evidence in relation to the re-opened issues by 5:00pm on Friday, 15 April 2011.
Order the defendants to file any evidence in relation to the re-opened issues by 5.00pm on Friday, 29 April 2011.
Order the plaintiff to file any evidence in reply on the re-opened issues by 5.00pm on 6 May 2011.
Direct the parties to exchange written submissions on the re-opened issues by 5.00pm on 12 May 2011.
Direct the parties to exchange written submissions in reply on the re-opened issues by 5.00pm on 19 May 2011.
Order pursuant to Civil Procedure Act 2005, s 26 that the parties engage in mediation of all issues in the proceedings such mediation to take place before Friday, 27 May 2011.
Grant liberty to apply.
Reserve the costs of the plaintiff's motion to re-open and amend dated 30 August 2010.

Amendments 27 April 2011 - Typographical error. Amended paragraphs: 18 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 April 2011

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