Federal Court of Australia

N.R Molloy Pty Ltd (as Trustee for the N.R. Molloy Family Trust) v GTP Pty Ltd (as Trustee of the Shane Hill Family Trust) [2026] FCA 1254

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 16.53 of the Federal Court Rules 2011 (Cth), the Cross-Respondent have leave to file and serve an amended defence to cross-claim which amends paragraph 46 of the amended defence to cross-claim in the manner identified in the annexures to the affidavit of Ms Prowse dated 12 August 2026.

2.    The Cross-Respondent’s interlocutory application dated 12 August 2026 be otherwise dismissed.

3.    The costs of the appearance at the case management hearing on 20 August 2026 be reserved.

4.    The Cross-Respondent pay the Applicant’s costs and the Respondents’ and Cross-Claimants’ costs of preparing the written submissions in response to the Cross-Respondent’s interlocutory application dated 12 August 2026 on a standard basis as taxed in default of agreement.

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

ORDERS

THE COURT ORDERS THAT:

1.    Order 3 of the orders of the Honourable Justice Bennett made on 21 August 2026 be vacated.

2.    The costs of the appearance at the case management hearing on 20 August 2026 be costs in the cause.

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

REASONS FOR JUDGMENT

BENNETT J

1    The application before the Court seeks orders for leave pursuant to r 16.53 of the Federal Court Rules 2011 (Cth) to file and serve an amended defence to cross-claim, and for leave pursuant to s 24AL(1) of the Wrongs Act 1958 (Vic) and r 9.05 of the Rules for the purposes of the Cross-Respondent’s apportionment defence pursuant to Part IVAA of the Wrongs Act to join certain parties to the proceeding, being:

(1)    Electrical Testing and Compliance Service Pty Ltd;

(2)    Scott Bellinger;

(3)    Camerons Accountants & Advisors Pty Ltd; and

(4)    Mark Augustine O’Brien.

2    The application is supported by the affidavit of Ms Prowse, a partner at Colin Biggers & Paisley with carriage of the matter.

3    N.R. Molloy Pty Ltd as trustee of the N.R. Molloy Family Trust (N.R Molloy Pty Ltd) commenced proceedings against GTP Pty Ltd as trustee of the Shane Hill Family Trust, Gregory Morton Pearton and Shane James Hill (together, the Respondents), in relation to a dispute arising out of a Share Sale Agreement completed in or about October 2020. Given the pendency of the trial, I will not say much about the nature of the proceedings, save to say that they concern the acquisition of Electrical Testing and Compliance Service Pty Ltd and the purchaser (i.e. the Applicant) alleges, at a high level, that during the sale processes, the vendors made some representations concerning financial performance, profitability, earnings and the value of the business.

4    The purchaser alleges that those representations were misleading or deceptive in contravention of the Australian Consumer Law and constituted breaches of warranties contained in the Share Sale Agreement.

5    The Respondents to these proceedings deny those allegations and have brought a cross-claim against I L Wollermann Pty Ltd (the Cross-Respondent). By that cross-claim, it is alleged that Wollermann, as the broker engaged in connection with the sale, prepared and communicated information and representations about the business in a manner that was misleading or deceptive, in breach of contractual obligations and/or negligent.

6    The Respondents contend that if they are liable to N.R. Molloy Pty Ltd for any loss or damage arising from misleading or deceptive conduct or breach of warranty, such liability was caused or contributed to by Wollermann’s conduct. They therefore seek contribution and/or indemnity from Wollermann in respect of any judgment entered against them.

procedural history

7    The Cross-Respondent was served with a cross-claim on 13 January 2025.

8    There was a mediation in the matter in May 2026. The matter did not resolve. Counsel were briefed in July 2026, two months prior to the commencement of the trial.

9    At the case management hearing on 21 July 2026, counsel appearing for Wollermann indicated there may be a need for amendment of the defence to cross-claim to plead out proportionate liability defences under the Competition and Consumer Act 2010 (Cth) (CCA) and the Wrongs Act.

10    On 31 July 2026, a letter was sent explaining the amendments and seeking consent from the other parties. Responses were received on 5 and 7 August 2026. The Cross-Claimant, curiously, opposed the orders sought but said that it would agree to the joinder of the proposed joined parties as “fully participating cross-respondents”.

11    There was then further correspondence by which the parties argued about the proposed amendments, and the present application was made on 12 August 2026. A trial of just over two weeks’ duration is set to commence on 3 September 2026, two weeks from today.

The applicable rule and principles

12    The circumstance in which an amendment will be permitted are well-known, having been articulated by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175.

13    Those principles have been repeated a great number of times, including in Alexiou v Australian and New Zealand Banking Group Ltd [2025] FCA 7. At paragraphs [50] and [51] of that case, Perram J sets out the principles relevant to the exercise of the discretion under the rule, quoting Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2015] FCA 1098 (Tamaya) as follows:

In [Tamaya], Gleeson J set out a convenient summary of the matters to be taken into account on an amendment application at [127]:

(1)    the nature and importance of the amendment to the party applying for it;

(2)    the extent of the delay and the costs associated with the amendment;

(3)    the prejudice that might be assumed to follow from the amendment, and that which is shown;

(4)    the explanation for any delay in applying for that leave;

(5)    the parties’ choices to date in the litigation and the consequences of those choices;

(6)    the detriment to other litigants in the Court; and

(7)    potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification.

The weighting to be given to these various matters depends on the facts of the case: Cement Australia Pty Ltd v Australian Competition & Consumer Commission [2010] FCAFC 101; 187 FCR 261 at [51] per Keane CJ, Gilmour and Logan JJ. The list is not necessarily exhaustive.

14    Of course, all of these factors are considered in the context of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth).

15    I will now make some observations in relation to some of the factors that I consider important in disposing of this application.

the relevant factors

The nature and importance of the amendment

16    I accept the proposed amendments arise on the facts already pleaded. I also accept that the proposed amendments arise “out of substantially the same story” as that which supports the already pleaded causes of action (Bryant (Liquidator) v LV Dohnt & Co Pty Ltd, in the Matter of Gunns Limited (In Liq) (Receivers and Managers Appointed) [2018] FCA 238 at [71] (Davies J), citing Camilleri v Trust Company (Nominees) Ltd [2015] FCA 1138 at [12] (Middleton J); see also Draney v Barry [2002] 1 Qd R 145 at [57] (Thomas JA)).

17    I have proceeded on the basis that the amendments proposed are of some importance and certainly they are non-trivial in that they appear capable of assisting the Cross-Respondent in reducing any liability if the Cross-Claimant is found liable to the Applicant.

The prejudice that might be assumed to follow from the amendment

18    Wollermann’s application proceeds on the basis that the proposed new cross-respondents would be content to take no part in the proceedings and would be “nominal” defendants only. It is assumed that no other step would be triggered by the proposed joinder, either by them or by the other parties.

19    I am not willing to make assumptions about what the proposed cross-respondents might or might not do, although it is reasonable to assume that they might be alarmed and seek the opportunity to take meaningful legal advice about the options that they have about a Federal Court trial due to commence in two weeks, in which they are each named as parties, and in that context, said to be responsible for some wrongdoing.

20    More fundamentally, as the Cross-Claimants points out, if the new parties are joined, the Cross-Claimants would seek to claim from them, so as to avoid losing the amount of any diminution of their own entitlement if it is found to exist. They argue, in effect, that by joining new parties to the proceedings at this late stage, the Cross-Respondent would effectively limit its own liability while simultaneously depriving the Cross-Claimants of the practical opportunity to pursue recovery from those whom the Cross-Respondent now alleges are concurrent wrongdoers.

21    The Cross-Respondent claims that this could be cured by pursuing subsequent proceedings against any concurrent wrongdoer in later proceedings based on the outcome in this case. This has two difficulties:

(1)    First, the cost and delay of a separate, subsequent proceeding is no small prejudice to be visited upon the Respondents without any reason why they should be put to such time and expense, particularly in circumstances where it could have been encompassed within the present trial with greater notice.

(2)    Second, the prospect of subsequent proceedings creates an incentive for joined parties to actively participate and seek to influence the present trial – a matter about which they would be entitled to take careful advice. Their ability to do so is significantly undermined by the timing of the application. In this respect, while it might be the Cross-Respondent’s view that the proposed joined parties could take no part in the proceedings, I can see no basis for concluding that would necessarily follow, particularly given the risks that they might face of being exposed to subsequent proceedings.

22    In addition, the Respondents raise a concern that certain witnesses who it calls as witnesses in the trial would then be joined as parties, and may therefore view the proceedings somewhat differently, or be less willing or able to assist in the conduct of the proceeding.

23    While I am not willing to assume that witnesses will do anything other than give evidence in accordance with their oath, I can see that there is some force in the notion that changing the basis upon which people take part in a proceeding, (including because they might be exposed to personal liability), might well have some second thoughts about the nature and intensity of their willingness to participate. While I consider it a relatively minor matter, I have nonetheless taken it into account.

The risk to the trial date

24    The Cross-Respondent argued that there is little risk to the trial date and any issues could be managed after the joinder.

25    The trial is two weeks away. It has been listed for a considerable period of time. I consider that the matters that I have already highlighted create a significant risk to the trial date.

26    It is possible, of course, that the proposed cross-respondents might be content to be named as nominal cross-respondents only, but that does not detract from the force of the Respondent’s argument that they would be put in an invidious position in terms of how to manage their changed recovery landscape.

27    As a matter of fairness to all parties, it would be difficult to resist the vacation of the trial date when considering the stress, difficulty and complexity of people even obtaining the necessary advice to take on board the risks of being only a nominal cross-respondent with only two weeks until the commencement of the trial. Even in circumstances where I assume some familiarity with the proceedings by the proposed cross-respondents, there is a substantial volume of material relevant to these proceedings and obtaining responsible advice in relation to them may well be no small matter.

The extent of the delay and the explanation for it

28    I have already outlined the procedural history of this matter, so far as it is relevant, and I will not do so again.

29    I do not consider the explanation for the delay in making the application is adequate. The matters necessary to know that amendment was necessary have been knowable for most of the time that the cross-claim has been in the possession of the Cross-Respondent.

30    Wollermann is well-represented. The fact that the issue was identified by counsel does not lead me to conclude that explains or excuses the failure to bring up the issue prior to the engagement of counsel. It is simply that the issue was not identified by lawyers who were in a position to identify it.

31    Accordingly, the lack of appropriate explanation for the delay in making the application is a significant factor in combination with the proximity of the trial and the risks to the trial that I have identified. Thus, the explanation for the delay, while clearly honest, is not compelling.

Forensic choices in the litigation

32    There is little evidence as to why certain forensic choices have been made in this proceeding. The Respondent elected to join only one Cross-Respondent. The impact of that forensic choice was capable of being understood by the Cross-Respondent for a substantial period of time. The proposed additional cross-respondents have been identifiable in the materials for a substantial period of time. Wollermann chose not to brief counsel sooner. It is affixed with its choices.

Detriment to other litigants in the Court

33    Because I perceive a significant risk to the trial date, I consider that there are detriments to other Court users. In the same way, I perceive a risk of loss of confidence in the legal system if I were to permit so late an amendment with such risks as I have identified to the orderly proceeding of the trial.

conclusion

34    Overall, I am satisfied that to the extent that the proposed amendments concerning proportionate liability:

(1)    the proposed amendments raise non-trivial issues and concern the same factual substratum as the earlier case;

(2)    there is prejudice for the Respondents, and potentially for the Applicant, in terms of the trial date;

(3)    there is only an inadequate explanation for the delay in identifying and then raising the issue;

(4)    the granting of the proposed amendments will result in prejudice to other litigants in my docket; and

(5)    in all the circumstances, the granting of those amendments would impact public confidence in the legal system.

35    It is artificial, in my view, to divide the proportionate liability claims between the CCA and the Wrongs Act amendments, although I have considered doing so for the reasons I have discussed, because only one requires joinder while the others do not.

36    However, the arguments that I have identified about the potential risks to the proposed cross-respondents would arise in those circumstances, and again in proximity to which we find ourselves in relation to the trial date. I do not consider those amendments to be appropriate. It would, in any event, be artificial to permit one and not the other.

37    I separately consider that it is just and appropriate to permit the amendment to paragraph 46, which concerns contributary negligence. That concerns no issue of fact and is a matter only of legal effect of the matters already pleaded.

38    Accordingly, there will be leave under r 16.53 of the Rules to amend paragraph 46 of the amended defence to cross-claim in the matter identified in the annexures to the affidavit of Ms Prowse, but the Cross-Respondent’s application of 12 August 2026 will otherwise be dismissed. I will hear the parties as to costs.

…

39    The costs of the appearance today will be costs in the cause.

40    The costs of preparing the written submissions will be awarded against the cross-respondent for the interlocutory application dated 12 August, and I note in that respect that that will include only the costs responding to the cross-respondent’s application and not any other aspect of the proceeding, on a standard basis.

41    These reasons were delivered ex tempore and were revised in accordance with Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; 272 CLR 329 at [30]-[31] (Steward J, Kiefel CJ, Keane, Gordon and Edelman JJ agreeing).

Associate:     

Dated:    27 August 2026

SCHEDULE OF PARTIES