Re Soverina Pty Limited v Natwest Australia Bank Limited [1993] FCA 65; (1993) 40 FCR 452 (1993) 118 ALR 298 (1 March 1993)

FEDERAL COURT OF AUSTRALIA

Re: SOVERINA PTY LIMITED
And: NATWEST AUSTRALIA BANK LIMITED
No. N G809 of 1992
FED No. 79
Number of pages - 19
Practice and Procedure
[1993] FCA 65; (1993) 40 FCR 452
(1993) 118 ALR 298

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Practice and Procedure - Amendment of statement of claim - representative proceedings involving disparate causes of action - whether leave to amend should be granted - whether part of proceedings constituting separate cause of action could be transferred to the Supreme Court of a State where substantially similar proceedings pending.

Federal Court Act 1976 Part IVA: s.33C

Trade Practices Act 1974: ss.52, s.86A(2)

Jurisdiction of Courts (Cross-Vesting) Act (Cth) 1987: s.5(4).

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; applied.

Catt v Marac Australia Ltd (1987) 9 NSWLR 639; distinguished.

Poignand v NZI Securities Australia Ltd [1992] FCA 369; (1992) 14 ATPR 41-181, 109 ALR 213; distinguished.

Jackson v John Fairfax and Sons Ltd (1988) 96 FLR 145; applied.

HEARING

SYDNEY, 2 February 1993
1:3:1993

Solicitors for Applicant: M.S. Smith Counsel and Solicitors P.R. Dutney QC instructed by
for Respondent: MacGillivrays

ORDER

THE COURT ORDERS THAT:
1. The proceedings to the extent that they purport to be brought under Part IVA of the Federal Court Act 1976 no longer continue under that Part.

2. The applicant have leave to amend its application so as to join the following as applicants to the proceeding:
(a) Equity Management Corporation Limited

(b) Corewell (1981) Pty Ltd.
(c) Deveban Pty Limited.
(d) Offida Holdings Pty Ltd
(e) Fedora Pty Ltd
(f) Aphrodite Pty Ltd
(g) Grendell Pty Ltd
(h) Othello Pty Ltd
(i) Michael Stanislaus Smith

3. The applicants have leave to join the following
as respondents to the proceedings:
(a) Thomas Joseph Bridston
(b) Murray Gordon Pollack
(c) Bruges Pty Ltd (ACN 008 968 563)
(d) Peter John HALL
(e) Ian Frederick STANWELL
(f) Graeme Julian SAMUEL
(g) Alan Anthony COX
(h) Nicholas Frank GREINER
(i) Bernard Phillip HORN
(j) Philip Whitney DEER
(k) Brimley Pty Ltd (ACN 009 183 608)
(l) Grandstand Holdings Pty Ltd (ACN 009 350 985)
(m) Wentina Pty Ltd (ACN 009 054 577)

4. The applicants file and serve within twenty-one days of the date hereof

an amended application setting out the relief sought by such of the persons as shall be joined as parties against such of the Respondents as shall have been joined in the proceedings.

5. The applicants have leave to amend the statement of claim in accordance with exhibit MSS4 to the affidavit of Michael Stanislaus Smith of 29 January 1993, save and except for paragraphs 133-156 (inclusive) and paragraphs 164 and 165, such amended statement of claim to be filed and served 21 days from the date of this order.

6. The proceedings against the first Respondent and such of the persons named in order 3 (d) to (j) inclusive as shall be joined be transferred to the Supreme Court of Queensland pursuant to s.5(4) of the Jurisdiction of Courts (Cross-Vesting) Act (Cth) 1987.

7. Order 6 be suspended for a period of 28 days from the date hereof.

8. Equity Management Corporation Ltd have leave to make a claim pursuant to s.33C of the Federal Court Act 1976 against all or some of Brimley Pty Ltd, Grandstand Holdings Pty Ltd and Wentina Pty Ltd on behalf of its shareholders.

9. Corewell (1981) Pty Ltd have leave to make a claim pursuant to s.33C of the Federal Court Act 1976 against all or some of Thomas Joseph Bridston, Murray Gordon Pollack and Bruges Pty Ltd on behalf of the beneficiaries of the Corewell Unit Trust.

10. Subject to the operation of order 6, the claims referred to in orders 8 and 9 be joined in the present proceedings and that the applicants, after the expiration of 28 days from the date of this order and before the expiration of a further fourteen days, thereafter file and serve upon the respondents to the proceedings remaining in this Court an amended application and amended statement of claim reflecting the orders sought and the claims made by all applicants in the proceedings.

11. Both motions be dismissed, subject to the above orders.

12. The applicant pay the respondent's costs of the two motions.

13. The matter be stood over to a date to be fixed for further directions, with liberty to either party to restore the matter to the list on four clear days' written notice to the other.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

HILL J. Before the Court are two notices of motion. The first is a motion of the applicant, Soverina Pty Ltd ("Soverina") seeking leave to amend its application and statement of claim, the joinder of various parties as respondents, an injunction restraining the respondent from proceeding further in proceedings commenced by it in the Commercial Division of the Supreme Court of Queensland; or alternatively, the joinder of various applicants as parties in the proceedings with leave for Soverina to represent those applicants. The second notice of motion, that of the respondent, seeks an order that the proceedings be dismissed, or that they be stayed pending determination of the proceedings in the Supreme Court of Queensland.

2. The present proceedings were commenced on 2 November 1992 in this Court. The proceedings in the Supreme Court of Queensland ("the Queensland proceedings") were commenced by the respondent to the present proceedings, Natwest Australia Bank Limited ("Natwest"), by writ of summons dated 27 February 1990. Offida Holdings Pty Ltd ("Offida"), Fedora Pty Ltd ("Fedora"), Aphrodite Pty Limited, Grendell Pty Limited, Othello Pty Ltd and Mr Michael Stanislaus Smith (all of whom are hereafter referred to as "the guarantors"), are also parties to those proceedings. By these proceedings, Natwest sought to recover an amount of $3,704,483.51, said to be owing to it by Soverina under a credit facility agreement guaranteed by the guarantors. Soverina and the guarantors filed and served a defence and cross-claim in the Queensland proceedings on 21 May 1990. The cross-claim brought in those proceedings is precisely the same as the claim brought against Natwest in the present proceedings in the statement of claim filed by Soverina, save that Soverina purports to be acting not only in its own right, but also in a representative capacity, inter alia, for the guarantors.

3. The proposed amended statement of claim to be filed in the present proceeding is seventy four pages in length and contains two hundred and fifty three paragraphs. A summary of it will, of necessity, be inadequate. Nevertheless, to understand the competing submissions, it is necessary to attempt a short analysis of the factual background alleged by the applicants. It should of course be stressed that in what follows I am making no factual findings, but merely repeating what are alleged in the statement of claim to be the facts.

4. One part of the story begins, it would seem, around 27 February 1987. As at that date, Soverina was the registered proprietor of certain land in Brisbane on which was conducted a caravan park known as the Carina Caravan Park Village. Natwest was the mortgagee of the caravan park. The shares in Soverina had been acquired by Fedora and Offida as trustee for Fedora. Equity Management Corporation Ltd ("EMC") was a public company. It sought to purchase the goodwill of the caravan park and obtain a ninety nine year lease over the realty, for a total consideration of $3.1 million. This was achieved by Soverina leasing the caravan park to Fedora for twenty years, by an assignment of that lease from Fedora to EMC, and thereafter by an agreement between Soverina and EMC extending the term of the lease to a term of ninety nine years. The rental under the ultimate ninety nine years lease was fixed as being $900,000 per annum for the first twenty years, and thereafter increasing in accordance with the prevailing inflation rate.

5. On 22 February 1988, there was executed a document referred to as a "Management Deed", the terms of which were in evidence before me. The parties to this document were Soverina, Fedora, Llantony Investments Pty Ltd ("Llantony"), EMC and Natwest. After reciting the agreement of lease of the caravan park from Soverina to Fedora and the assignment by Fedora to EMC, there was then recited the grant and assignment by Soverina to Llantony of the right to operate the caravan park during the currency of the lease. There was then witnessed the grant and assignment by Llantony, with the consent of Soverina, to EMC of the right to operate the caravan park, the appointment by EMC of Soverina as the manager of EMC for the caravan park, at a management fee to be agreed upon between them but in no event exceeding $10,000 per month. Critical to the applicant's case in the present proceedings is cl.3 which relevantly provides as follows:

"...in consideration of Natwest Bank consenting
to the Lease and to the Assignment and to this
Deed (as shall be evidenced by its execution
hereof) Soverina and EMC jointly and severally
HEREBY ACKNOWLEDGE AND AGREE:
(a) that the aforesaid consent to the Lease
shall be without prejudice to the rights
powers and remedies of Natwest Bank under
the mortgage... which shall remain in full
force and effect as if this Deed had not
been executed by Natwest Bank except that
so long as the covenants conditions and
provisions of the Lease are fully observed
and performed Natwest Bank will in the
event of the exercise of the power of sale
or other power or remedy of Natwest Bank
as mortgagee on default under the
Mortgage, exercise the same subject to the
then subsisting rights of EMC as lessee
under the Lease...
(c) that upon Natwest Bank giving notice to
EMC as lessee of demanding to enter into
receipt of the rents of the Caravan Park
the covenants on the part of the lessee
expressed or implied in the Lease shall be
deemed to have been entered into by EMC
with Natwest Bank and all the rights
powers and remedies of the lessor under
the Lease shall vest in and be exercisable
by Natwest Bank until such notice be
withdrawn or the Mortgage be discharged
PROVIDED THAT if EMC shall commit default
under the Lease then notwithstanding the
provisions of the Lease in relation to
default, Natwest Bank may at its sole and
absolute discretion give EMC notice that
the Lease shall be terminated at fourteen
(14) days after the date of service of
such notice and at the expiration of said
period of fourteen (14) days the lease
shall be and be deemed to be terminated."

6. It is alleged, inter alia, by Soverina that the management deed effected a variation of the Natwest mortgage by including therein an implied term which is said to be that:

"That the respondent (presumably Natwest) would
exercise any of its rights powers and remedies
under this mortgage subject to any subsisting
rights of EMC under the lease between Soverina
as lessor and EMC as lessee as at the date of
exercise of such rights powers and remedies."

7. Natwest formed the view that there was default as to payment of rent and made demand for payment upon EMC on 21 November 1989. The existence of a default is denied by the applicant. Ultimately, Natwest appointed a receiver who went into possession of the caravan park.

8. Going back in time, however, it is alleged that EMC was promoted in 1987. The promoters were Mr Miller, Mr Rose and Mr Murphy (hereafter referred to as "the promoters"). An extraordinary general meeting of the shareholders of EMC was held on 15 January 1988. As at that date the promoters were the sole directors of EMC. The statement of claim alleges that at that extraordinary general meeting a number of misrepresentations were made, or alternatively there was a failure at that meeting to disclose material facts. Matters said not to have been disclosed included the rental payable by EMC on the caravan park and other financial matters. It is further said that there was a failure by the promoters to disclose their own interest in the transaction to those who invested in EMC, or EMC itself.

9. Legal proceedings were apparently commenced against Mr Miller by a number of investors in relation to Mr Miller's breach of fiduciary duty. These proceedings, in the Supreme Court of Western Australia, were ultimately settled. In August 1989 they were brought to the attention of Natwest who thereupon, so it is alleged, became aware of the alleged breaches of fiduciary duty. It is claimed that thereafter and by demanding the interest owing to it, which interest could only be paid out of the rent owing to Soverina, Natwest became a party to the breach. Alternatively, it is said that in so doing, Natwest itself breached its own fiduciary duty to the applicant. Alternatively, it is alleged that Natwest was in breach of its contractual obligations under the management agreement and that it was unlawful for it to demand the payment of interest from EMC.

10. When the receiver took possession on 2 January 1990, EMC was conducting business on the caravan sites. There was money held by EMC as part of its business in cash registers etc which was seized together with other chattels. EMC made demand upon Natwest for return of the money and other chattels, but to date the money and chattels have not been returned.

11. In about February 1987 the shares in Soverina were transferred to Offida and Fedora for a consideration of $1.4 million. It is alleged that to induce Offida and Fedora to purchase the shares, Natwest represented that Soverina was not insolvent and was in a financial position to continue to trade. Likewise, it is alleged that to induce the guarantors to provide guarantees to Natwest to secure debts owed to Natwest by Soverina, Natwest represented that Soverina was not insolvent and was in a financial position to continue to trade, whereas those representations were false or negligently made.

12. These facts (there are other facts pleaded which affect parties other than the respondents which are unnecessary to repeat), it is alleged, give rise, inter alia, to the following causes of action.
1. A claim against a Mr Bridston and a Mr Pollock, that they breached

their fiduciary duty to the applicant in respect of a transaction
involving Corewell (1981) Pty Ltd, unrelated to the events I have
indicated.

2. A claim against Mr Hall, Mr Stanmore, Mr Samuel, Mr Cox, Mr

Greiner, Mr Horne and Mr Dear as directors of Natwest alleging
that they had misappropriated property of EMC, and, alternatively,
for restitution or conversion.

3. Claim in damages for defamation brought by EMC against Messrs

Bridston, Pollock and Bruges Pty Ltd, arising out of alleged
warranties of correctness of balance sheets.

4. A claim against Natwest for conversion by the receivers, and

additionally in contract, for cancelling the lease and seizing
possession of the money and chattels.

5. A claim against Natwest for breach of fiduciary duty in "taking an

improper advantage through its wrongful possession of the caravan
park".

4. A claim brought under s.52 of the Trade Practices Act against

Natwest for misrepresenting that Soverina was solvent and thereby
inducing Offida and Fedora to purchase all the shares in Soverina.

5. A claim brought by the guarantors against Natwest under s.52,

based upon the same misrepresentations alleged in 4. above,
thereby inducing the guarantors to give the guarantees.

13. The attempt to bring the somewhat disparate actions described in the application and statement of claim as a single class action under the provisions of Part IVA of the Federal Court of Australia Act 1976 ("the Act") was, in my view, misconceived. Indeed, there would be justification in the argument that the application as filed involved on its face an abuse of the process of the Court.

14. It is a prerequisite of representative proceedings that the provisions of s.33C (1) of the Act are complied with. That sub-section provides:

"Subject to this Part, where:
(a) 7 or more persons have claims against the
same person; and
(b) the claims of all those persons are in
respect of, or arise out of, the same,
similar or related circumstances; and
(c) the claims of all those persons give rise
to a substantial common issue of law or
fact;
a proceeding may be commenced by one or more of
those persons as representing some or all of
them."

15. What Soverina has purported to do here is to join together, under the guise of a representative proceeding, proceedings by it and various diverse others which arise out of factual circumstances related only in an historical sense many of which involve discrete factual and legal issues. The motivation in so doing, particularly when the majority of the matters claimed were already in the course of litigation in the Queensland proceedings, can but be guessed at.

16. By way of example, there is absolutely no connection between the proceedings sought to be brought against Natwest for conversion of money and goods, and proceedings sought to be brought by EMC in defamation against Messrs Bridston, Pollock and Bruges Pty Limited. Why either of these proceedings should be a representative proceeding brought in the name of Soverina is also somewhat difficult to say.

17. But accepting, for the moment, that the present was a case where the prerequisites of s.33C(1) were satisfied, I am of the view that it is in the interests of justice that the present proceedings (save that part of the proceedings sought to be brought on behalf of the investors in EMC) required that the proceedings not continue under Part IVA, having regard to the cost likely to be incurred, and to the fact that each of the represented parties could simply be joined as a party to the present litigation. This is particularly so in respect of the claims which are the subject of the Queensland proceedings. Once the guarantors are parties to the present proceedings, it becomes obvious that those claims (treated as separate "proceedings") satisfy the criteria for transmission to the Supreme Court of Queensland under the provisions of s.5(4) of the Jurisdiction of Courts (Cross-Vesting) Act (Cth) 1987. In particular, I find that they are:

* related to, and in fact are identical to the
cross-claims brought in the Queensland proceedings; and
* that the interests of justice require that the
relevant proceedings be determined in the Supreme
Court of Queensland, having regard to the progress
which has been made in the litigation in that State.

18. Alternatively, I find in accordance with s.5(4)(b)(iii) that it was otherwise in the interests of justice that those proceedings be determined in the Supreme Court of Queensland.

19. The solicitor for the applicants conceded that the claims of Corewell (1981) Pty Limited, the beneficiaries of the Corewell Unit Trust and Deveban are remote from the claims otherwise pleaded, and that each of those parties should be joined as a party to the present proceedings, involving, so it is alleged, publication of information that EMC was in liquidation. I give leave to the applicant to amend its application accordingly.

20. Once the orders foreshadowed above are made, it becomes clear that the only representative parties left are the investors. Without them there are not the requisite number of seven parties to constitute a group action.

21. The claim of the investors, so far as concerns Natwest (there are other claims made on behalf of the investors which do not concern Natwest, and which are not the subject of the present motions) is that the action of Natwest in enforcing its security for interest after notice, constitutes a breach by Natwest of a fiduciary duty owed by it to Natwest's shareholders, or participation in the breach of duty by Mr Miller towards the EMC investors.

22. It was submitted by senior counsel for Natwest, that the pleading disclosed no cause of action against Natwest and accordingly that I should not give leave to amend the statement of claim to permit that pleading to be raised, when to do so would be futile. It is accepted that the basis of such a submission is the application of the well-known test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-30. I agree with these submissions. Once it is conceded, as the pleadings do, that neither Natwest's security, nor the management agreement, was infected by any breach of duty by Natwest at the time each was entered into, the enforcement of that security by the requirement of interest properly payable could never amount to a breach of fiduciary duty by Natwest. Nor could knowledge of Mr Miller's breach of duty ever preclude Natwest from enforcing its own security properly entered into. The cases of Catt v Marac Australia Ltd (1987) 9 NSWLR 639 and Bank of New Zealand v Equiticorp Finance Ltd (1992) 9 ACSR 199, to which I was referred by the applicant, are not authorities to the contrary. Thus, in the former, the loans were made by the lender with the knowledge that Mr Winter had received a secret commission. The case was not one where the loans when made were uninfected by the breach of fiduciary duty by Mr Winter.

23. Accordingly, I would not permit the applicant to amend its statement of claim to add claims against Natwest by the investors. However, the applicant may, should it be so advised, continue a representative action on behalf of the investors against Brimley Pty Limited, Grandstand Holdings Pty Limited and Wentina Pty Limited. In so saying it should be emphasised that none of these companies was represented before me on the motion and I have not considered whether the pleadings disclose a cause of action against these companies by the investors.

24. Similarly, the directors were not parties to the proceedings before me. I should say, however, that I can not see how a separate cause of action arises against the directors for the conversion by the receiver, acting on behalf of Natwest, of money and chattels. The claim appears to me to border upon the frivolous. Nor is it pleaded that the persons named were directors at the relevant time. Indeed, there must be some doubt whether, in the case of at least one of them, this was the case. The applicant would be well advised to consider amending the pleading, so far as it related to the case against the directors.

25. I have found the task of framing orders in the present proceedings somewhat difficult, having regard to the multitude of actions which are intertwined. In doing so, I have had regard to the decision of Gummow J in Poignand v NZI Securities Australia Limited [1992] FCA 369; (1992) 109 ALR 213, where his Honour expressed the view that this Court was forbidden, by the opening words of sub-sec.86A(2) of the Trade Practices Act 1974, from transferring a representative proceeding based upon that Act to the Courts of a State, and in any event that any discretion so to do should be exercised against so doing as there was a real question as to the availability in State Courts of special representative proceedings. With respect I agree with his Honour's comments. However, that does not mean that the Court might not, in the exercise of its judicial discretion, remit to a State Court a matter which had commenced as a representative proceeding in this Court, but where the Court had ordered that the action not continue under Part IVA of the Act.

26. I have regard also to the decision of Miles C.J. in Jackson v John Fairfax and Sons Ltd (1988) 96 FLR 145, where it was held that a court to which an application to cross-vest a matter to another court under the cross vesting legislation had power to cross-vest a "proceeding". As his Honour said (at 152):

"...the Act contemplates that out of the
totality of proceedings in one court, there may
be a transfer of a singular proceeding (or
several singular proceedings) to another court."

27. Thus, in that case, part of the action brought, as constituted by a claim for damages and various paragraphs of a statement of claim, was transferred by his Honour to another court. The subsequent decision of Smart J in Blake v Norris (1990) 20 NSWLR 300, that the word "proceeding" should be construed to mean "cause of action" requires no different result in the present case.

28. It follows that it is open to me, having determined that the tests in s.5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 were satisfied, to transfer discrete causes of action ("proceedings") to the Supreme Court of Queensland, provided that those causes of action are not representative proceedings brought under the Trade Practices Act 1974. In my view, it is in the interests of the parties and the administration of justice so to do in the present case. Despite the submissions of the solicitor for the applicant, there is nothing in the decision of Gummow J in Poignand which as a matter of law prevents me from taking this course.

29. There is a practical difficulty, however, in ensuring that the pleadings ultimately take on an intelligible form. One alternative, suggested by draft orders prepared by the respondent, would have the applicants, once joined in their own right in the present proceedings, file a number of different applications, one relating to the proceedings to be transferred to Queensland, one or more relating to such representative proceedings as are to remain in this Court, and one relating to the non-representative proceedings to remain in this Court. That course, while having the virtue of final clarity, would entail the applicants in additional court filing fees, and should, I think be avoided if possible. To this end I have decided to approach the matter somewhat differently.

30. In framing the orders, I have taken the course of first ensuring that the proceedings so far as presently brought are not representative proceedings. I have then given leave to join those parties who clearly should be parties in their own right, these including those entities or persons which or who are parties to the Queensland proceedings. After these amendments are made to the application and the statement of claim, amended as sought by the applicants (subject to disallowing the claim against the first respondent which has been discussed above), the order to transfer to Queensland the proceedings which involve issues common to those presently the subject of the Queensland proceedings, or, as in the case of the proposed claim against the directors, have a common substratum of fact, can then take effect. Thereafter I envisage that a new set of pleadings be then filed which would deal only with the relief sought in so much of the matter as remains with this Court.

31. Accordingly, I would make the following orders consistent with the reasons which I have given:

1. That the proceedings to the extent that they
purport to be brought under Part IVA of the
Federal Court Act 1976 no longer continue under
that Part.
2. That the applicant have leave to amend its
application so as to join the following as
applicants to the proceeding:
(a) Equity Management Corporation Limited
(b) Corewell (1981) Pty Ltd.
(c) Deveban Pty Limited.
(d) Offida Holdings Pty Ltd
(e) Fedora Pty Ltd
(f) Aphrodite Pty Ltd
(g) Grendell Pty Ltd
(h) Othello Pty Ltd
(i) Michael Stanislaus Smith
3. That the applicants have leave to join the
following as respondents to the proceedings:
(a) Thomas Joseph Bridston
(b) Murray Gordon Pollack
(c) Bruges Pty Ltd (ACN 008 968 563)
(d) Peter John HALL
(e) Ian Frederick STANWELL
(f) Graeme Julian SAMUEL
(g) Alan Anthony COX
(h) Nicholas Frank GREINER
(i) Bernard Phillip HORN
(j) Philip Whitney DEER
(k) Brimley Pty Ltd (ACN 009 183 608)
(l) Grandstand Holdings Pty Ltd (ACN 009 350 985)
(m) Wentina Pty Ltd (ACN 009 054 577)
4. That the applicants file and serve within
twenty-one days of the date hereof an amended
application setting out the relief sought by
such of the persons as shall be joined as
parties against such of the Respondents as shall
have been joined in the proceedings.
5. That the applicants have leave to amend the
statement of claim in accordance with exhibit
MSS4 to the affidavit of Michael Stanislaus
Smith of 29 January 1993, save and except for
paragraphs 133-156 (inclusive) and paragraphs
164 and 165, such amended statement of claim to
be filed and served 21 days from the date of
this order.
6. That the proceedings against the first
Respondent, Offida Holdings Pty Ltd, Fedora Pty
Ltd, Aphrodite Pty Ltd, Grendell Pty Ltd,
Othello Pty Ltd, Mr Michael Stanislaus Smith and
such of the persons named in order 3 (d) to (j)
inclusive as shall be joined be transferred to
the Supreme Court of Queensland pursuant to
s.5(4) of the Jurisdiction of Courts
(Cross-Vesting) Act (Cth) 1987.
7. That order 6 be suspended for a period of 28
days from the date hereof.
8. That Equity Management Corporation Ltd have
leave to make a claim pursuant to s.33C of the
Federal Court Act 1976 against all or some of
Brimley Pty Ltd, Grandstand Holdings Pty Ltd and
Wentina Pty Ltd on behalf of its shareholders.
9. That Corewell (1981) Pty Ltd have leave to make
a claim pursuant to s.33C of the Federal Court
Act 1976 against all or some of Thomas Joseph
Bridston, Murray Gordon Pollack and Bruges Pty
Ltd on behalf of the beneficiaries of the
Corewell Unit Trust.
10. That subject to the operation of order 6, the
claims referred to in orders 8 and 9 be joined
in the present proceedings and that the
applicants, after the expiration of 28 days from
the date of this order and before the expiration
of a further fourteen days, thereafter file and
serve upon the respondents to the proceedings
remaining in this Court an amended application
and amended statement of claim reflecting the
orders sought and the claims made by all
applicants in the proceedings.

32. Subject to these orders, I would dismiss both motions before me. As the respondent in the proceedings has been largely successful, it seems to me to be appropriate that the applicant pay the respondent's costs of the two motions. I would stand the matter over to a date to be fixed for further directions, with liberty to either party to restore the matter to the list on four clear days written notice to the other.