Ingot & Ors v Macquarie & Ors [2004] NSWSC 1136

Ingot & Ors v Macquarie & Ors [2004] NSWSC 1136

The revised draft further amended 33rd cross-claim and amended 36th cross-claim pleaded by NCRA do sufficiently allege the material facts necessary to found claims of knowing and dishonest assistance under the second limb of Barnes v Addy, including the existence of fiduciary duties, breaches committed in pursuit of a dishonest and fraudulent design, and knowledge by the alleged third parties. The defects previously identified in comparable interlocutory proceedings have been addressed and do not preclude leave to amend or continuation of claims at this procedural stage.

Parties
Plaintiffs: Ingot Capital Investments Pty Limited & Ors; Defendants: Macquarie Equity Capital Markets Limited & Ors; Cross Claimant on 33rd and 36th Cross Claims: New Cap Reinsurance Corporation Limited (in liquidation); Cross Defendant to 33rd Cross Claim: Guy Carpenter & Company Pty Limited; Cross Defendant to 33rd Cross Claim: Guy Carpenter & Company Limited; Cross Defendant to 36th Cross Claim: Azmin Firoz Daya; Cross Defendant to 36th Cross Claim: Udayan Daniel Ghose; Cross Defendant to 36th Cross Claim: Paul Laurence Williams; Cross Defendant to 36th Cross Claim: William David Peck; Cross Defendant to 36th Cross Claim: Peter Aroney
Jurisdiction
Australia
Judgment Date
30 November 2004
Procedural Posture
Commercial List, Equity Division Proceedings With Multiple Cross Claims / Interlocutory Applications Regarding Leave to Amend Cross Claims and Related Procedural Motions
Outcome
Applications by Guy Carpenter to prevent amendment and set aside cross-claims dismissed. Leave granted to NCRA to further amend cross-claims. Orders as specified in judgment.
Legal Topics
Procedure—amendment of Pleadings, Knowing and Dishonest Assistance (barnes V Addy), Breach of Fiduciary Duty, Pleading Requirements, Statutory Directors’ Duties
Equity Corporations Commercial Law Procedure—amendment of Pleadings Knowing and Dishonest Assistance (barnes V Addy) Breach of Fiduciary Duty Pleading Requirements Statutory Directors’ Duties

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Parties

Ingot Capital Investments Pty Limited & Ors

Plaintiffs

Macquarie Equity Capital Markets Limited & Ors

Defendants

New Cap Reinsurance Corporation Limited (in liquidation)

Cross Claimant on 33rd and 36th Cross Claims

Guy Carpenter & Company Pty Limited

Cross Defendant to 33rd Cross Claim

Guy Carpenter & Company Limited

Cross Defendant to 33rd Cross Claim

Azmin Firoz Daya

Cross Defendant to 36th Cross Claim

Udayan Daniel Ghose

Cross Defendant to 36th Cross Claim

Paul Laurence Williams

Cross Defendant to 36th Cross Claim

William David Peck

Cross Defendant to 36th Cross Claim

Peter Aroney

Cross Defendant to 36th Cross Claim

Procedural Posture

Commercial List, Equity Division Proceedings With Multiple Cross Claims / Interlocutory Applications Regarding Leave to Amend Cross Claims and Related Procedural Motions

Legal Issues

  1. 1 Whether draft further amended 33rd and amended 36th cross-claims sufficiently plead knowing and dishonest assistance in breach of fiduciary duty under Barnes v Addy
  2. 2 Whether material facts as to knowledge are sufficiently pleaded against Guy Carpenter parties
  3. 3 Whether trading losses (“but for” damages) claim is arguable in equity

Ratio Decidendi

The revised draft further amended 33rd cross-claim and amended 36th cross-claim pleaded by NCRA do sufficiently allege the material facts necessary to found claims of knowing and dishonest assistance under the second limb of Barnes v Addy, including the existence of fiduciary duties, breaches committed in pursuit of a dishonest and fraudulent design, and knowledge by the alleged third parties. The defects previously identified in comparable interlocutory proceedings have been addressed and do not preclude leave to amend or continuation of claims at this procedural stage.

Court Disposition

Applications by Guy Carpenter to prevent amendment and set aside cross-claims dismissed. Leave granted to NCRA to further amend cross-claims. Orders as specified in judgment.

Orders

  • Grant NCRA leave to further amend 33rd cross-claim and to amend 36th cross-claim in accordance with revised drafts.
  • NCRA to file and serve further amended and amended cross-claims by 4 pm on 1 December 2004.