In the matter of Graziers Pastoral Pty Limited; In the matter of Windsor Livestock Holdings Pty Limited; In the matter of Windsor Livestock Pty Limited [2021] NSWSC 1680

In the matter of Graziers Pastoral Pty Limited; In the matter of Windsor Livestock Holdings Pty Limited; In the matter of Windsor Livestock Pty Limited [2021] NSWSC 1680

The Court declined to allow late amendments to the claim or late reliance on expert evidence as the delay was unexplained or unjustified and would prejudice the other parties and case management. No exceptional circumstances justified the extension of time for expert reports. The only amendment allowed was one not opposed by the defendants (para 79AA). The Court also declined to allow a formalistic business judgment rule defence that lacked material facts and detail.

Parties
First Plaintiff: John Parilo; Second Plaintiff: WD Capital Pty Limited; Third Plaintiff: Parilo Holdings Pty Limited; First Defendant: Graziers Pastoral Pty Limited; Second Defendant: Windsor Livestock Holdings Pty Limited; Third Defendant: Windsor Livestock Pty Limited; Fourth Defendant: Suelen McCallum; Fifth Defendant: Riad Tayeh; Sixth Defendant: Alan Gordon Taylor; Seventh Defendant: Free Flight Australia Pty Limited; Eighth Defendant: Redglint Pty Limited
Jurisdiction
Australia
Judgment Date
21 December 2021
Procedural Posture
Corporations/oppression Proceedings and Winding Up / Ruling on Interlocutory Amendments and Procedural Applications
Outcome
Applicants’ interlocutory amendments dismissed except for one consented amendment; extension of time for expert evidence refused; DVT Directors' amendment to Defence refused for lack of detail.
Legal Topics
Amendment of Pleadings, Expert Evidence, Business Judgment Rule, Oppression Remedies, Case Management, Leave to Amend, Leave to Rely on Expert Evidence Out of Time
Civil Procedure Corporations Law Amendment of Pleadings Expert Evidence Business Judgment Rule Oppression Remedies Case Management Leave to Amend +1 more

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Parties

John Parilo

First Plaintiff

WD Capital Pty Limited

Second Plaintiff

Parilo Holdings Pty Limited

Third Plaintiff

Graziers Pastoral Pty Limited

First Defendant

Windsor Livestock Holdings Pty Limited

Second Defendant

Windsor Livestock Pty Limited

Third Defendant

Suelen McCallum

Fourth Defendant

Riad Tayeh

Fifth Defendant

Alan Gordon Taylor

Sixth Defendant

Free Flight Australia Pty Limited

Seventh Defendant

Redglint Pty Limited

Eighth Defendant

Procedural Posture

Corporations/oppression Proceedings and Winding Up / Ruling on Interlocutory Amendments and Procedural Applications

Legal Issues

  1. 1 Whether to grant leave to amend Originating Process and Points of Claim late and expand claims
  2. 2 Whether to grant leave to rely on expert evidence served out of time
  3. 3 Whether to grant leave to amend the Defence to plead business judgment rule under s 180(2) of the Corporations Act

Ratio Decidendi

The Court declined to allow late amendments to the claim or late reliance on expert evidence as the delay was unexplained or unjustified and would prejudice the other parties and case management. No exceptional circumstances justified the extension of time for expert reports. The only amendment allowed was one not opposed by the defendants (para 79AA). The Court also declined to allow a formalistic business judgment rule defence that lacked material facts and detail.

Court Disposition

Applicants’ interlocutory amendments dismissed except for one consented amendment; extension of time for expert evidence refused; DVT Directors' amendment to Defence refused for lack of detail.

Orders

  • Grant leave to file and serve Further Amended Points of Claim incorporating only paragraph 79AA by 4:00 pm on 15 December 2021; defendants to serve Defence by 22 December 2021.
  • Otherwise dismiss the Interlocutory Process and direct the Plaintiffs pay costs of their Interlocutory Process as agreed or assessed.