Federal Court of Australia

Brydi Pty Ltd atf the Brydi Super Fund v Southern Cross Payments Ltd [2026] FCA 543

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rr 8.21 and 16.53 of the Federal Court Rules 2011 (Cth), the applicant have leave to file and serve an amended originating application and amended statement of claim substantially in the form annexed to its interlocutory application dated 16 January 2026.

2.    The first respondent pay the applicant’s costs of the application.

3.    The applicant pay the respondents’ costs thrown away by reason of the amendments.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    By an interlocutory application filed on 16 January 2026, the applicant seeks leave to amend its originating application and statement of claim filed on 16 April 2025. The applicant relies on the affidavit of its solicitor, Mr Martin del Gallego sworn on 16 January 2026.

2    The proposed amendments to the statement of claim:

(a)    plead additional and uncontroversial facts relating to the alleged conduct of the second respondent, Grant Thornton, in conducting the audit of the financial statements of ISX (now known as Southern Cross Payments Ltd, the first respondent), including additional contraventions of discrete auditing standards; and

(b)    plead additional facts and allegations relating to the conduct of ISX in making representations to investors who purchased shares in ISX on the ASX, which arose from a recent review by the applicant’s solicitors of documents referred to in its pleadings, and from the reasons of the Company Auditors Disciplinary Board (CADB) in relation to the relevant audits published after the commencement of this proceeding.

3    Grant Thornton did not oppose the applicant’s proposed amendments.

4    On 22 December 2014, ISX, then named Otis Energy Limited, acquired 100% of the issued shares of iSignthis BV (a company incorporated in the Netherlands) and ISX IP Ltd (a company incorporated in the British Virgin Islands) from a British Virgin Islands incorporated company (known as iSignthis Limited (iSignthis BVI)) which was owned and controlled by Mr Karantzis; and changed its name to iSignthis Limited, and its ASX ticker to ISX.

5    iSignthis Limited was listed on the ASX until 4 November 2022. The company has been referred to as ISX, so I will do likewise.

6    At the hearing before me, ISX relied on an affidavit of its solicitor, Mr Colin Almond affirmed on 30 January 2026 which deposed to matters concerning the proceeding before McEvoy J.

7    ISX contended that:

(a)    paragraphs 136A.5, 136A.7, 136B.1, 136B.2 and 136B.3 of the proposed pleading are an abuse of process because a separate proceeding involving ASIC, ISX and a Mr John Karantzis (its CEO) and a similar substratum of facts has already been determined (relevantly, in so far as Mr Karantzis is concerned, in his favour); and

(b)    paragraphs 136A.5, 136A.7, 136B.1, 136B.2, 136B.3 and 180 are insufficiently particularised.

8    For the reasons that appear below, the applicant’s application is to be allowed.

BACKGROUND

9    This is a proceeding commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth). The applicant and group members are persons who acquired shares in ISX on the ASX.

10    ISX carried on business as “a provider of online payment and identity and verification services”. It was listed on the ASX via a backdoor listing. After that occurred, some of its directors (including the CEO, Mr Karantzis) were entitled to earn “Milestone Shares” if certain performance hurdles were met. The Milestone Shares would convert into ordinary ISX shares on a one for one basis if, within three full financial years, ISX achieved revenue over a 6-month reporting period equivalent to an annual revenue of at least $10 million.

11    As part of its statutory reporting to the ASX, ISX released audited financial accounts for the FY18 Financial Year (to 30 June 2018) and for the period to 31 December 2018 (the FY18 accounts), which contained a declaration by the directors that the revenue to achieve the Milestone Shares had been met, that the shares would therefore be issued and that, in the opinion of the directors, the financial statements and notes referred to therein complied with the Corporations Act 2001 (Cth) and the relevant pleaded Accounting Standards.

12    The FY18 accounts were audited by Grant Thornton, and contained its audit opinion to the effect that, in the opinion of Mr Taylor (the lead auditor), and Grant Thornton, they were in accordance with the Corporations Act and gave a true and fair view of ISX’s financial position.

13    The applicant alleges in substance that the revenue recorded in the FY18 accounts was recorded in circumstances where, under the applicable Accounting Standards, it should not have been recognised because the revenue was generated by an activity that was not a core service. That had the combined effect, on the applicant’s case, that the Milestone Shares vested when they ought not to have vested, and that the FY18 accounts were not accurate.

14    In this proceeding, the applicant, on its own behalf and on behalf of the group members, now seeks to advance additional claims in the proposed amended pleading that:

(a)    ISX engaged in misleading or deceptive conduct relating to its statements in the FY18 accounts contrary to s 1041H of the Corporations Act;

(b)    ISX engaged in the making of false or misleading statements in the FY18 accounts contrary to s 1041E of the Corporations Act;

(c)    Grant Thornton engaged in misleading or deceptive conduct relating to its statements in the FY18 accounts (the giving of its audit opinion) contrary to s 1041H of the Corporations Act; and

(d)    Grant Thornton engaged in the making of false or misleading statements in the FY18 accounts (the giving of its audit opinion) contrary to s 1041E of the Corporations Act.

15    As I said, Grant Thornton does not oppose the amendments directed against it.

16    On 2 October 2019, the ASX suspended ISX shares from trading, and published a “Statement of Reasons” which explained the reason for the suspension and the governance concerns held by the ASX. ISX then commenced proceedings against the ASX (which it subsequently discontinued after two years). Various regulatory and criminal proceedings followed.

17    On 7 December 2020, ASIC commenced civil penalty proceedings in this court against iSignthis Ltd (ISX) and Mr Karantzis.

18    On 21 June 2024, McEvoy J delivered judgment. His Honour made a number of declarations of contravention against iSignthis Ltd and Mr Karantzis, including that the latter had contravened ss 180(1), 1309(2), 1309(12), and 674(2A) of the Act by reason of his involvement in iSignthis’ contravention of s 674(2). Relevantly for present purposes, however, his Honour dismissed ASIC’s case that Mr Karantzis had contravened ss 181(1) and 182(1)(a) of the Corporations Act in relation to the company’s entry into various so-called “integration agreements”.

19    On 8 August 2025, his Honour ordered that the company pay a pecuniary penalty of $10 million in respect of its contraventions, and that Mr Karantzis pay a penalty of $1 million in respect of the contraventions for which he had been held liable, and that he be disqualified from managing corporations for a period of six years.

20    On 5 September 2025, iSignthis Ltd and Mr Karantzis lodged an appeal, which was heard in the March 2026 sittings. It is yet to be determined, but I was told in the course of oral submissions on this application that ASIC did not appeal his Honour’s dismissal of the ss 181 and 182 claims made against Mr Karantzis.

21    On 25 June 2025, following the commencement of this proceeding, the CADB issued reasons in two decisions in ASIC v Bradley Laurence Willot Taylor [2025] CADB 1 and ASIC v Simon Christopher Trivett [2025] CADB 2. These proceedings had been stayed following the commencement of criminal proceedings against the respondents in the Magistrates Court of Victoria. The CADB proceeding against Mr Taylor resumed in October 2024, after the parties to the criminal prosecution agreed that Mr Taylor would undertake a diversion program.

22    Mr Taylor has since had his registration as an auditor cancelled.

23    The CADB decisions refer to several relevant material facts which were previously not known to the applicant, and that bear on the issues in these proceedings. The pleaded defences of the respondents also referred to documents which the applicant did not have until after the defences were served and the documents were produced to the applicant.

THE PROPOSED AMENDMENTS

24    In summary, the following proposed amendments involve the following:

(a)    the applicant seeks to plead additional Auditing Standards that are apparent from the CADB decisions: see, ASOC [32.1A], [32.6A], [34A], [43A];

(b)    the applicant seeks to plead that ISX made a further representation (defined as the ISX Governance and Control Representation) to the effect that all of ISX’s directors and members were required to act with “integrity”, that ISX had sufficient systems in place to appropriately recognise revenue and that it had disclosed all key risks to the business of ISX to the applicant and group members: see, ASOC [62A], [62B];

(c)    the applicant seeks to make consequential amendments to the material facts relating to the “Authenticate Contracts”: see, ASOC [110A], [114A], [114B], [114C], [115.8];

(d)    the applicant seeks to plead further breaches of ss 1041H and 1041E of the Corporations Act relating to the ISX Governance and Control Representation: see, ASOC [136A] to [136D]; and [136E] to [136I]; and

(e)    various other minor consequential amendments.

25    It is helpful to set out the terms of the proposed amendments that are, or involve indirectly, the opposed amendments:

Governance and Control Representations

62A. Prior to, and at all times during the Relevant Period, ISX represented to the Affected Persons that, or to the effect that:

62A.1    all of ISX’s directors and members of its audit committee were required by ISX to act, and did act, with integrity;

62A.2    ISX had sufficient systems and controls in place to appropriately recognise revenue in accordance with applicable Accounting Standards; and

62A.3    ISX had disclosed to the Affected Persons all key risks to the business of ISX and there was nothing, to the knowledge of ISX or its directors, that presented a threat to the continued listing, trading, or governance of the company.

(together, the ISX Governance and Control Representations).

Particulars

i.    The ISX Governance and Control Representations were partly express and partly implied. To the extent that they were express (62A.1 to 62A.2), the Applicant refers to various publicly available documents including the: ISX Corporate Governance Statement, ISX Board Charter, Continuous Disclosure Policy, Corporate Governance Policy: Risk Management and Internal Compliance and Control. To the extent that they were implied (62A.3), this is implied from ISX’s stated commitment to continuous disclosure and the absence of any qualification or disclosure by ISX or its directors concerning any threats to the continued listing, trading or governance of the company.

62B.    The ISX Governance and Control Representations were continuing representations from the time that they were made and throughout the Relevant Period.

…

J.5 S 1041H Liability – ISX Governance and Control Representations

136A.    At the time of the FY18 June Audit, the release of the FY18 June Accounts, the FY18 December Audit, the release of the FY18 December Accounts and during the Relevant Period, it was a fact that:

136A.1    Mr Richards (Chief Financial Officer), Mr Karantzis (Managing Director and CEO), and Mr Timothy Hart (Chairman) held interests in iSignthis BVI, the entity to which the Milestone Shares were issued;

136A.2    none of the milestones for the conversion of the Milestone Shares had been met in any six-month period to 31 December 2017;

136A.3    the last six-month period in which any of the milestones for the conversion of the Milestone Shares could be met was the six month period to 30 June 2018;

136A.4    if the milestones for the conversion of the Milestone Shares were met in the six-month period ending 30 June 2018, then the new ordinary shares issued on the conversion of the Milestone Shares constituted approximately 33% of the issued ordinary shares of ISX, and so had a material dilutionary effect on other shareholders of ISX;

136A.5    Mr Richards, Mr Karantzis and Mr Hart caused ISX to enter into the Authenticate Contracts and the Outsourcing Agreements for the actuating purpose of generating enough revenue to achieve the Milestone Shares;

Particulars

i.    Messrs Richards, Karantzis and Hart held senior roles within ISX and held interests in iSignthis BVI during the Relevant Period as pleaded at paragraph 136A.1 above.

ii.    Given the materiality of the Authenticate Contracts and the Outsourcing Agreements to the ISX business, it is inferred that Messrs Richards, Karantzis and Hart caused ISX to enter into the Authenticate Contracts and the Outsourcing Agreements given their roles as CFO, CEO and Chairman respectively.

iii.    Management of ISX was primarily dominated by Mr Karantzis and Mr Richards (see paragraph 467 of the CADB Reasons; see FY18 Annual Report and the words at Note 20: “The following person also had the authority and responsibility for planning, directing and controlling the major activities of the consolidated entity, directly or indirectly, during the financial year: Mr Todd Richards CFO and Company Secretary”).

iv.    Mr Karantzis was directly involved in the negotiations of the Authenticate Contracts and Mr Hart approved the Outsourcing Agreements.

v.    As to subparagraph 136A.5, the actuating purpose is clear from:

(a)    The objective effect, or likely effect, of the Authenticate Contracts, which was to achieve the conditions precedent to the trigger of the Milestone Shares in the context of ISX recognising these sums as ‘revenue’;

(b)    The Authenticate Contracts and the Outsourcing Agreements, together, had little or no economic benefit to ISX (see paragraphs 112 and 115) to otherwise justify the risk of ISX entering into those contracts (being performance risk and the inherent credit risk of contracting with foreign entities in the circumstances pleaded at paragraphs 76, 87, 109, 110A and 115).

(c)    In the context of the personal interest of Mr Richards, Mr Karantzis and Mr Hart, the matters pleaded in paragraphs 78, 82, 89, 94, 101 and 118 (not part of the Core Services), 108 to 109 (probity of Corp Destination and Nona), 110A (discrepancies relating to the Authenticate Contracts), 114A (the fact of the Misstatement), 115 (not in the ordinary activities of ISX),117 and 118 (should not have been recognised as revenue).

136A.6    ISX had inadequate systems and internal controls to accurately record revenue; and

136A.7    by reason of the matters pleaded in subparagraph 136A.5, ISX (or the directors of ISX) were aware, or ought to have been aware, of a significant key risk to the business of ISX which presented a tangible threat to the continued listing or trade of ISX, being the erroneous recognition of revenue the subject of the Authenticate Contracts and that risk was not disclosed by ISX to the Affected Persons.

Particulars

i.    The CADB Taylor Decision at paragraph 179.

ii.    The inadequacy of the systems and internal controls is inferred from the matters referred to in the CADB Taylor Decision at paragraphs 243, 266, 271(d), 279(e), and 353(b).

iii.    The awareness of ISX, or its directors, as pleaded in subparagraph 136A.7 is inferred from the personal interest of Mr Richard, Mr Karantzis and Mr Hart in the Milestone Shares (and hence the revenue the subject of the Authenticate Contracts) in the context of the matters pleaded in paragraphs 114A to 114C, 115 and 116.

iv.    The Applicant repeats the particulars for paragraph 136A.5 above. Mr Karantzis was involved in preparing, and had knowledge of, previous announcements and reports that the company had released to the market (see paragraph 163 of the ASIC Judgment].

v.    Messrs Hart and Richards were on the ISX Audit Committee between 1 July 2017 to 30 June 2018 (see ISX’s defence filed 3 October 2025 at paragraph 60.6).

vi.    A director or officer of ISX, acting reasonably and with due care and skill, would have been aware, or ought to have been aware, that the erroneous recognition of revenue would represent a significant key risk to the business of ISX.

vii.    In the context of the key business risk identified by Grant Thornton as “revenue recognition” and the contents of the Management Representation Letter it is inferred that ISX would have been aware or ought to have been aware of the significant key risk alleged.

viii.    Further particulars may be provided following evidence and discovery.

136B.    The material facts pleaded in paragraph 136A demonstrate that:

136B.1    Mr Richards, Mr Karantzis and Mr Hart failed to act with integrity;

Particulars

i.    That Mr Richards, Karantzis and Hart failed to act with integrity is evident from the combined circumstances pleaded in paragraph 136A above including: the significant personal interest of each of Richards, Karantzis and Hart and, in the context of that personal interest, the actuating purpose alleged in paragraph 136A.5, in the further context of the inadequate systems and controls alleged (paragraph 136A.6) and the awareness of the significant key risk pleaded (paragraph 136A.7).

ii.    Further particulars may be provided after the provision of evidence and discovery.

136B.2    ISX encouraged, alternatively was ambivalent toward, the pursuit of the personal interests of Mr Richards, Mr Karantzis and Mr Hart;

Particulars

i.    The Applicant relies on the matters pleaded in paragraph 136A above and its particulars in support of this contention, as well as the particulars provided for in paragraphs 136B.1 and 136B.2 above.

ii.    Further particulars may be provided after the provision of evidence and discovery.

136B.3    ISX did not require its directors and members of the audit committee to act with integrity with respect to transactions in which they had a significant personal interest;

Particulars

The Applicant relies on the matters pleaded in paragraph 136A above and its particulars in support of this contention, as well as the particulars provided for in paragraphs 136B.1 and 136B.2 above.

Further particulars may be provided after the provision of evidence and discovery.

136B.4    ISX had inadequate systems and internal controls to accurately record revenue;

136B.5    there existed a significant key risk to the business of ISX; and

136B.6    ISX did not act to prevent that conduct by refusing to recognise the revenue attributable to the Milestone Shares or refusing to issue the Milestone Shares, or imposing some penalty on Mr Richards, Mr Karantzis and Mr Hart.

136C    The conduct of ISX in making the ISX Governance and Control Representations was conduct which was:

136C.1    in relation to a financial product or a financial service within the meaning of s 1041H of the Corporations Act; and

136C.2    in trade or commerce, in relation to financial services within the meaning of s 12DA(1) of the ASIC Act.

136D    The conduct of ISX in making the ISX Governance and Control Representations was conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 1041H of the Corporations Act and s 12DA(1) of the ASIC Act in the circumstances pleaded in paragraphs 136A and 136B above (Control ISX Contravention).

J.6 S 1041E Liability – ISX Governance and Control Representations

136E.    By reason of the matters pleaded at paragraphs 62A and 62B above, ISX made a statement or disseminated information, being the ISX Governance and Control Representations to the Affected Persons.

136F.    The ISX Governance and Control Representations were likely to be relied upon by the Affected Persons in deciding whether to acquire, dispose of or retain ISX shares.

136G.    By reason of the matters pleaded in paragraph 136F, the ISX Governance and Control Representations were likely to have the effect of increasing, maintaining or stabilising the price for trading in ISX shares on the ASX.

136H.    When making the ISX Governance and Control Representations, ISX ought reasonably to have known that the ISX Governance and Control Representations were materially misleading by reason of the matters pleaded in paragraph 136A.

136I.    By reason of the matters pleaded in paragraphs 136E to 136H, by making the ISX Governance and Control Representations, ISX contravened s 1041E of the Corporations Act (this also being a Control ISX Contravention).

26    IXS’ principal complaint was that the paragraphs it opposed would, if allowed, constitute an abuse of process.

27    Here, in the case of the ASIC proceeding, as I have explained, the regulator brought proceedings (relevantly, and among other causes of action) against ISX and Mr Karantzis, alleging among other things contraventions by Mr Karantzis of ss 181 and 182 of the Corporations Act.

28    This proceeding is brought by a different applicant (being the lead applicant and the group members) against ISX (now Southern Cross Payments Ltd) and Grant Thornton, and relevantly seeks to allege contraventions by them of ss 1041H and 1041E of the Corporations Act.

29    Counsel for the applicant conceded, as he was bound to, that the factual substratum of the allegations in this proceeding is substantially similar to that in the ASIC proceeding – that is, that it involves the same transactions and the same factual matrix, and that this proceeding seeks to impugn the same transactions.

30    He also conceded, again as he was bound to, that if the applicant succeeds in establishing the contraventions of ss 1041H and 1041E contemplated by the proposed amendments, then there is some risk that findings will be made that may be inconsistent with certain findings of the judge in the ASIC Proceeding.

31    In CBRE (V) Pty Ltd v Trilogy Funds Management Ltd (2021) NSWLR 202 at 207-208, Bell P (as the Chief Justice then was) discussed the applicable abuse of process principles in these passages:

[20]    Thirdly, the primary judge correctly recognised that the categories of abuse of process are not closed and that there may be an abuse of process where a later set of proceedings does not involve precisely the same parties as the initial proceedings. Usually, however, that will involve a circumstance where the same plaintiff (or a related party) sues a defendant in a second set of proceedings that either has already been sued or is related to or associated with the (successful) defendant in an earlier set of proceedings. An example fitting this paradigm is Moore v Inglis (1976) 50 ALJR 589.

[21]    A variation on this pattern is supplied by the famous case of Reichel v Magrath (1889) 14 App Cas 665 where Reichel, who had resigned as the vicar of a parish and was replaced by Magrath, brought proceedings unsuccessfully against the bishop for a declaration that his resignation was null and void. Magrath subsequently commenced proceedings against Reichel seeking a declaration as to the validity of his appointment. In these proceedings, Reichel raised a defence identical to that which had been rejected in the earlier proceedings. The House of Lords upheld the striking out of Reichel’s defence as an abuse of process, holding that “it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action”: at 668.

[22]    Critically, in the present case, the primary judge pointed out that, although Trilogy was City Pacific’s successor as responsible entity for the Fund, City Pacific’s claim, at least as finally maintained, was not brought in its capacity as responsible entity for the Fund: Trilogy Funds Management Ltd as trustee and responsible entity of the Pacific First Mortgage Fund v CBRE (V) Pty Ltd [2021] NSWSC 883 at [76]. This was not, therefore, a case where the same party (or different parties in the same capacity or related parties) were suing the same defendant in respect of the same loss. That would represent an archetypal case of abuse of process. Nor was it a case where any person or party associated with or in control of Trilogy had ever brought proceedings against CBRE previously.

[23]    This leads to the fourth observation. At least in the court’s inherent jurisdiction, an important distinction can and has been drawn between regulating the conduct of a person who has commenced proceedings so as to prevent the court’s processes from being abused, on the one hand, and impeding a particular person in the exercise of his or her rights of access to the courts, on the other hand: see Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 319; [1974] HCA 17. Trilogy was not under any express or implied duty to commence proceedings against CBRE because it knew of the 2015 Proceedings and the possibility of a common issue in proceedings which it may wish to commence in the future. For reasons explained below, the Civil Procedure Act did not impose any such obligation.

32    I was taken by counsel for ISX to a decision of the Canadian Supreme Court in City of Toronto v Canadian Union of Public Employees, Local 79, 2003 SCC 63; [2003] 3 SCR 77, which was referred to in passing by Beazley P in O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698 at 723 [108].

33    The facts were far removed from the facts here. There, an employee (one Oliver) worked for the respondent City of Toronto. He was convicted in a trial before a judge in which he was cross-examined of sexual assault, which conviction was affirmed on appeal. The City then fired him. Oliver appealed his dismissal to an arbitrator, who ruled that his criminal conviction was not conclusive evidence of the assault, and that despite the fact that no new evidence was introduced the arbitrator found that the presumption raised by the criminal conviction had been rebutted and that Oliver had been dismissed without just cause. The Divisional Court quashed the ruling, which the Court of Appeal upheld. The Supreme Court dismissed Oliver’s appeal.

34    Justice Arbour, with whom the other members of the court agreed, said the following at pages 111-112:

D. Application of Abuse of Process to Facts of the Appeal

I am of the view that the facts in this appeal point to the blatant abuse of process that results when relitigation of this sort is permitted. The grievor was convicted in a criminal court and he exhausted all his avenues of appeal. In law, his conviction must stand, with all its consequent legal effects. Yet as pointed out by Doherty J.A. (at para. 84):

Despite the arbitrator’s insistence that he was not passing on the correctness of the decision made by Ferguson J., that is exactly what he did. One cannot read the arbitrator’s reasons without coming to the conclusion that he was convinced that the criminal proceedings were badly flawed and that Oliver was wrongly convicted. This conclusion, reached in proceedings to which the prosecution was not even a party, could only undermine the integrity of the criminal justice system. The reasonable observer would wonder how Oliver could be found guilty beyond a reasonable doubt in one proceeding and after the Court of Appeal had affirmed that finding, be found in a separate proceeding not to have committed the very same assault.

That reasonable observer would also not understand how Oliver could be found to be properly convicted of sexually assaulting the complainant and deserving of 15 months in jail and yet also be found in a separate proceeding not to have committed that sexual assault and to be deserving of reinstatement in a job which would place young persons like the complainant under his charge.

35    It is not altogether clear to me whether that approach to abuse of process is consistent with what Bell P said in the passages set out above in CBRE, but to the extent that what a reasonable observer may have cause to wonder about is relevant to the question of whether the possibility of inconsistent findings in two different proceedings may involve an abuse of process, then it seems to me that the reasonable observer in this case, once informed that the new proceeding, although concerning the same substratum of facts, is brought by a different party unrelated to the plaintiff in the earlier proceeding, against an additional defendant (Grant Thornton), in reliance upon different legislative provisions, would well understand how that could be.

36    Counsel for both parties appearing before me recognised that there is a balancing exercise involved in cases such as this. In my view, one significant factor that weighs in favour of permitting the amendments is that this proceeding could not realistically have been brought or heard at the same time as the ASIC proceeding, and it would be unfair to shut out the class members from pursuing their causes of action because ASIC chose to bring its proceeding when it did, against the parties named as defendants on the (different) grounds alleged. As in CBRE, the applicants should not be impeded from exercising their rights of access to the courts, and they were not under any duty to commence proceedings against ISX because they knew of the ASIC proceeding and the possibility of a common issue in proceedings which it may wish to commence in the future. See too Tomlinson v Ramsey Food Processing (2015) 256 CLR 507 at 523 [38] (“It is a principle at the core of our legal system that a party claiming or denying the existence of a legal right or obligation should have an opportunity to present evidence and arguments to establish the facts and law on which the claim or denial is founded”.)

37    In my view, in the circumstances of this case, for those reasons, it would not be an abuse of process to permit the impugned allegations being included in the pleading, and I will make an order accordingly.

38    Complaint was also made about the content of certain particulars, but that allegation in the end was only faintly pressed and there is, in my view, no substance in it.

39    I will make orders accordingly. I will also order that ISX pay the applicant’s costs of the amendment application, and that the applicant pay the costs of ISX and Grant Thornton thrown away by reason of the amendments.

Associate:

Dated:    5 May 2026