In the matter of Felan’s Fisheries Pty Limited [2016] NSWSC 1901

In the matter of Felan’s Fisheries Pty Limited [2016] NSWSC 1901

Leave was granted to file the Amended Originating Process and Further Amended Statement of Claim (except certain parts), and to join three new director defendants, as the proposed amendments (with exclusions) were not embarrassing or unduly prejudicial, and did not clearly lack prospects of success. Leave to add amendments and parties relating to trust-of-a-promise and oppression/derivative actions was refused as those pleadings were embarrassing, uncertain and prejudicial. Costs for the security for costs application were apportioned: Felan's to pay SFM's costs of proving impecuniosity; otherwise SFM to pay Felan's costs for its unsuccessful application, subject to any agreement between...

Parties
Plaintiff: Felan's Fisheries Pty Limited; First Defendant: Sydney Fish Market Pty Limited; Second Defendant: SFM Tenants and Merchants Pty Limited; Third Defendant: Bruce James Standen; Fourth Defendant: Grahame Richard Turk; Fifth Defendant: John Samuel Symonds; Sixth Defendant: William John Gallagher; Seventh Defendant: Sandra Margaret Hook; Eighth Defendant: Terry Con Poulos; Ninth Defendant: Harry Kouros; Tenth Defendant: Gregory George Imisides; Eleventh Defendant: Nicholas Peter Manettas; Proposed Defendant Joined: Messrs Apostolakis; Proposed Defendant Joined: Mr Jeffreson; Proposed Defendant Joined: Mr Fidden
Jurisdiction
Australia
Judgment Date
23 December 2016
Procedural Posture
Corporations Dispute – Amendment Application / Interlocutory (application to Amend Pleadings and Add Parties)
Outcome
Leave granted in part for amendment and joinder; leave refused for certain claims and parties; costs directions as per reasons.
Legal Topics
Amendment of Pleadings, Joinder of Parties, Security for Costs, Directors' Duties, Injunctions, Shareholder Agreements, Trusts of a Promise, Oppression
Practice and Procedure Corporations Law Equity Amendment of Pleadings Joinder of Parties Security for Costs Directors' Duties Injunctions +3 more

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Parties

Felan's Fisheries Pty Limited

Plaintiff

Sydney Fish Market Pty Limited

First Defendant

SFM Tenants and Merchants Pty Limited

Second Defendant

Bruce James Standen

Third Defendant

Grahame Richard Turk

Fourth Defendant

John Samuel Symonds

Fifth Defendant

William John Gallagher

Sixth Defendant

Sandra Margaret Hook

Seventh Defendant

Terry Con Poulos

Eighth Defendant

Harry Kouros

Ninth Defendant

Gregory George Imisides

Tenth Defendant

Nicholas Peter Manettas

Eleventh Defendant

Messrs Apostolakis

Proposed Defendant Joined

Mr Jeffreson

Proposed Defendant Joined

Mr Fidden

Proposed Defendant Joined

Procedural Posture

Corporations Dispute – Amendment Application / Interlocutory (application to Amend Pleadings and Add Parties)

Legal Issues

  1. 1 Whether leave should be granted to amend originating process and pleadings to add claims and parties
  2. 2 Whether proposed amendments are embarrassing or cause prejudice
  3. 3 Whether claims for injunctions under s 1324 of the Corporations Act should be allowed

Ratio Decidendi

Leave was granted to file the Amended Originating Process and Further Amended Statement of Claim (except certain parts), and to join three new director defendants, as the proposed amendments (with exclusions) were not embarrassing or unduly prejudicial, and did not clearly lack prospects of success. Leave to add amendments and parties relating to trust-of-a-promise and oppression/derivative actions was refused as those pleadings were embarrassing, uncertain and prejudicial. Costs for the security for costs application were apportioned: Felan's to pay SFM's costs of proving impecuniosity; otherwise SFM to pay Felan's costs for its unsuccessful application, subject to any agreement between...

Court Disposition

Leave granted in part for amendment and joinder; leave refused for certain claims and parties; costs directions as per reasons.

Orders

  • Leave granted to Felan's Fisheries Pty Limited to amend originating process and statement of claim (excluding paragraphs 124AE–124AK and corresponding relief).
  • Leave granted to join Messrs Apostolakis, Jeffreson, and Fidden as defendants, reserving their opportunity to seek to set aside the joinder if inadequate notice.