FEDERAL COURT OF AUSTRALIA

Done v Financial Wisdom Limited [2008] FCA 1706

ADDENDUM

KENNETH STEPHEN DONE, JUDITH ANNE DONE, KANILO PTY. LIMITED, SILKGROW PTY. LIMITED, WAINIDIVA PTY LIMITED, MOONGAZER PTY LIMITED, KEN DONE & ASSOCIATES PTY LTD and DONE NOMINEES PTY. LIMITED v FINANCIAL WISDOM LIMITED, WAYNE CHEN, BENTLEY BARTON PARTNERS PTY LIMITED (IN LIQ) and GARY TAYLOR

NSD 2178 OF 2007

PERRAM J

14 NOVEMBER 2008 (ADDENDUM 18 DECEMBER 2008)

SYDNEY

ADDENDUM

1                     In my reasons for judgment given on 14 November 2008 I concluded that it was appropriate that leave be granted to join Allianz to the proceeding.  The question before me – and the agreed basis upon which the matter was argued – was that to resist joinder Allianz needed to demonstrate that the applicants’ construction of the policy was so untenable that it should not be permitted to be argued.  There was no occasion for me to express a concluded view as to whether Allianz’s or the applicants’ submissions were correct.

2                     A reading of my reasons for judgment would, or might, convey to those untutored in what the issues on the application were that the question of the proper construction of the policy had been thereby resolved.  That issue has not been resolved.  All that has occurred is that I have held that Allianz’s argument that the applicants’ construction is doomed to fail is itself without merit.  The true construction will be determined at the trial in light of all of the evidence and submissions and not, as this application was, merely on a preliminary view of the material presently available.

Associate:

Dated:         18 December 2008