FEDERAL COURT OF AUSTRALIA
Sheahan, in the matter of Atsikbasis Nominees Pty Ltd (in Liquidation) (No 3) [2013] FCA 982
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IN THE FEDERAL COURT OF AUSTRALIA |
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IN THE MATTER OF ATSIKBASIS PTY LTD (IN LIQUIDATION)
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judge: |
besaNKO J |
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DATE OF ORDER: |
25 SEPTEMBER 2013 |
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WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
1. The defendants be given leave to file and serve an amended defence in the form of the third amended defence which is annexure “PJJ-21” to the affidavit of Peter James Jackson sworn on 10 September 2013 within 2 days.
2. The plaintiffs have leave to file and serve any amended reply within 7 days of the service of the third defence.
3. The defendants and cross-plaintiffs be given leave to file and serve an amended cross-claim amending or adding the following paragraphs:
3.1 paragraphs 69A-69G, 71.4, 101A, 104, 104.1, 104.1A, 104.2A, 108.7A-108.7D in the form of the second amended statement of cross-claim which is annexure “PJJ-20” to the said affidavit of Mr Jackson; and
3.2 paragraph 70 in the form set out in paragraph 9 of the defendants’ and cross-plaintiffs’ outline of submissions dated 24 September 2013;
within 2 days.
4. The cross-defendants have leave to file and serve amended defences within 14 days of the service of the amended cross-claim.
5. The time for the fourth cross-defendant to file and serve any affidavit containing their evidence in chief of any lay witnesses on the cross-claim be extended nunc pro tunc to a period within 7 days of the service of its defence on the cross-plaintiffs.
6. The plaintiffs have their costs occasioned by the amendments to the defence and the costs of today.
7. The cross-plaintiffs pay the cross-defendants’ costs of and incidental to the application made in respect of paragraphs 3 and 4 of the interlocutory application dated 10 September 2013.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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SOUTH AUSTRALIA DISTRICT REGISTRY |
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GENERAL DIVISION |
SAD 131 of 2012 | |
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IN THE MATTER OF ATSIKBASIS PTY LTD (IN LIQUIDATION) |
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BETWEEN: |
JOHN SHEAHAN AS LIQUIDATOR OF ATSIKBASIS NOMINEES PTY LTD (IN LIQUIDATION) ACN 007 769 557 First Plaintiff ATSIKBASIS NOMINEES PTY LTD (IN LIQUIDATION) ACN 007 769 557) Second Plaintiff | |
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ATSIKBASIS NOMINEES NO. 2 PTY LTD (ACN 100 537 415) AS TRUSTEE OF THE ATSIKBASIS FAMILY SETTLEMENT NO. 2 First Defendant/First Cross-Plaintiff MANUEL ATSIKBASIS Second Defendant/Second Cross-Plaintiff MARIA ATSIKBASIS Third Defendant/Third Cross-Plaintiff FOTINA ATSIKBASIS Fourth Defendant/Fourth Cross-Plaintiff HELEN ATSIKBASIS-STAMATELOPOULOS Fifth Defendant/Fifth Cross-Plaintiff PETER ATSIKBASIS Sixth Defendant/Sixth Cross-Plaintiff NICHOLAS ATSIKBASIS Seventh Defendant/Seventh Cross-Plaintiff MANUEL ATSIKBASIS AND MARIA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE MANUEL ATSIKBASIS FAMILY SUPERANNUATION FUND Eighth Defendant/Eighth Cross-Plaintiff NICHOLAS ATSIKBASIS AND FOTINA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE NICHOLAS ATSIKBASIS FAMILY SUPERANNUATION FUND Ninth Defendant/Ninth Cross-Plaintiff SPIROS ATSIKBASIS, MARIA ATSIKBASIS, PANAGIOTIS (PETER) ATSIKBASIS AND AIKATERINI ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE PETER & KATHY ATSIKBASIS SUPERANNUATION FUND Tenth Defendant/Tenth Cross-Plaintiff MESSARIUS NOMINEES PTY LTD (ACN 100 537 442) AS TRUSTEE OF THE MANUEL ATSIKBASIS FAMILY TRUST NO. 2 Eleventh Defendant/Eleventh Cross-Plaintiff NICHOLAS ATSIKBASIS AND FOTINA ATSIKBASIS IN THEIR CAPACITY AS TRUSTEES OF THE FOTINA ATSIKBASIS FAMILY TRUST Twelfth Defendant/Twelfth Cross-Plaintiff MACOBU NOMINEES PTY LTD (ACN 100 537 460) AS TRUSTEE OF THE SPIROS ATSIKBASIS FAMILY TRUST NO. 2 Thirteenth Defendant/Thirteenth Cross-Plaintiff LINCOLN ENGINEERS PTY LTD (ACN 007 812 713) Fourteenth Cross-Plaintiff RANKINE SOLICITORS First Cross-Defendant RANKINE TUCKER LAWYERS Second Cross-Defendant FOX TUCKER LAWYERS Third Cross-Defendant MERCHANT ACCOUNTING PARTNERS PTY LTD Fourth Cross-Defendant | ||
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JUDGE: |
BESANKO J |
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DATE: |
25 SEPTEMBER 2013 |
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PLACE: |
ADELAIDE |
REASONS FOR JUDGMENT
1 This is an interlocutory application by the cross-plaintiffs for orders in terms of paragraphs 3 and 4 of the cross-plaintiffs’ application dated 10 September 2013. The order sought in paragraph 4 is consequential upon the order in paragraph 3. That is to say, if the order sought in paragraph 3 is made, then the order sought in paragraph 4 will also be made. If the order in paragraph 3 is refused, then the order in paragraph 4 will also be refused.
2 In support of the application, the cross-plaintiffs relied on an affidavit of Peter James Jackson, sworn on 10 September 2013, and an outline of submissions dated 24 September 2013. The cross-defendants oppose the application insofar as it relates to what the fourth cross-defendant described in its submissions dated 25 September 2013 as the new Macobu claim (see paragraph 1.3). As I understand it, the new Macobu claim is set out in paragraphs 113A to 113BG in the proposed second amended statement of cross-claim (see annexure PJJ20 to the affidavit of Mr Jackson, sworn on 10 September 2013). The first to third cross-defendants rely on an affidavit sworn by Amanda Louise Adamson on 24 September 2013. The fourth cross-defendant relies on an affidavit of Joseph Robert Henderson, sworn on 25 September 2013, and the written submissions previously referred to. I have also heard submissions from counsel today.
3 The plaintiffs have indicated that they do not oppose the application, providing it does not imperil the trial date. The cross-defendants submit that the new Macobu claim does not fall within the terms of rule 15.01(b) of the Federal Court Rules 2011 (Cth). In other words, they submit that it raises a claim for relief that is not related to the subject of the proceeding. I do not need to consider this argument because I am able to decide the application by reference to discretionary considerations.
4 I have taken into account the matters set out in the written submissions and the oral submissions of counsel today. In my opinion, the orders sought in paragraphs 3 and 4 of the cross-plaintiffs’ interlocutory application should be refused in relation to the new Macobu claim. In my opinion, there is a substantial risk that the trial date, at least in relation to the cross-plaintiffs and cross-defendants, would have to be vacated if the orders were to be made. That risk arises in a context where there is no express explanation by the cross-plaintiffs of the reasons why the new Macobu claim was not introduced earlier. In those circumstances, I consider it appropriate to refuse the orders in paragraphs 3 and 4 in relation to the new Macobu claim.
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I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. |
Associate:
