BMG Poseidon Corp Pty Ltd v Adelaide Bank Limited; In the Matter of BMG Poseidon Corp Pty Ltd [2009] FCA 389 (21 April 2009)

Last Updated: 23 April 2009

FEDERAL COURT OF AUSTRALIA

BMG Poseidon Corp Pty Ltd v Adelaide Bank Limited; In the Matter of BMG Poseidon Corp Pty Ltd [2009] FCA 389

EVIDENCE – application by the plaintiff for leave to re-open after the hearing but before judgment – no new evidentiary material of any substance – existing evidence and arguments presented in a different way – leave to re-open refused – part of the material received as a submission only

Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587; (2006) 58 ACSR 414 cited
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 cited
The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 cited

IN THE MATTER OF BMG POSEIDON CORP PTY LTD ACN 058 909 256
BMG POSEIDON CORP PTY LTD ACN 058 909 256 v ADELAIDE BANK LIMITED ACN 061 461 550, SOUTHERN CROSS HOME LOANS PTY LIMITED ACN 072 177 309 and AUSTRAL MORTGAGE CORPORATION PTY LIMITED ACN 057 091 326
NSD 1839 of 2007

FOSTER J
21 APRIL 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1839 of 2007

IN THE MATTER OF BMG POSEIDON CORP PTY LTD ACN 058 909 256

BETWEEN:

BMG POSEIDON CORP PTY LTD ACN 058 909 256 Plaintiff

AND:	ADELAIDE BANK LIMITED ACN 061 461 550 First Defendant SOUTHERN CROSS HOME LOANS PTY LIMITED ACN 072 177 309 Second Defendant AUSTRAL MORTGAGE CORPORATION PTY LIMITED ACN 057 091 326 Third Defendant

JUDGE:	FOSTER J
DATE OF ORDER:	21 APRIL 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to reopen be refused.
2. The material in paragraphs 3 and 29 of the affidavit sworn by Mr Gambhir Watts on 14 April 2009, together with Annexure 2A to that affidavit, be received as a submission.
3. The costs of the Notice of Motion filed by the plaintiff on 14 April 2009 be costs in the proceedings.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1839 of 2007

IN THE MATTER OF BMG POSEIDON CORP PTY LTD ACN 058 909 256

BETWEEN:

BMG POSEIDON CORP PTY LTD ACN 058 909 256 Plaintiff

AND:	ADELAIDE BANK LIMITED ACN 061 461 550 First Defendant SOUTHERN CROSS HOME LOANS PTY LIMITED ACN 072 177 309 Second Defendant AUSTRAL MORTGAGE CORPORATION PTY LIMITED ACN 057 091 326 Third Defendant

JUDGE:	FOSTER J
DATE:	21 APRIL 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In the proceedings, the plaintiff seeks to set aside a Creditor’s Statutory Demand served upon the plaintiff by the first defendant on 27 August 2007 and also seeks other relief by way of damages. The proceedings have a long history in this Court. It is not necessary for me to traverse that history for present purposes.
2. On 10 December 2008, I heard the plaintiff’s Application and, at the conclusion of the hearing, reserved my decision. That decision remains reserved.
3. On 15 December 2008, Mr Watts, to whom I have granted leave to appear on behalf of the plaintiff, forwarded a facsimile communication to my chambers in which he sought to place before me certain additional material. That facsimile transmission will be marked MFI-2 and placed in the Court file.
4. In response to Mr Watts’ communication, Registry staff informed him that he would need to make the application which he was seeking to make in the correspondence to which I have referred by way of formal Notice of Motion supported by an affidavit or affidavits.
5. On 14 April 2009, Mr Watts filed a Notice of Motion in which he sought an order:

To admit additional evidence as contained in the affidavit of Gambhir Watts sworn 14 April 2009 to the hearing before His Honour Justice Foster on 10 December 2008.

6. That Notice of Motion was supported by an affidavit sworn by Gambhir Watts on the same day, that is to say, on 14 April 2009. The affidavit comprises some five pages of text and a number of annexures. The annexures, with one exception to which I shall come shortly, comprise documents which all pre-dated the hearing which took place before me on 10 December 2008. The majority of the documents bear dates between early 2005 and mid-2007. All of the documents appear to have been in the possession of the plaintiff or Mr Watts at all times since they were brought into existence.
7. Further, most of the affidavit deals with events and contentions covering the period 2005 to 2007.
8. The exception to these remarks is Annexure 2A to the affidavit which is commented upon in paragraphs 3 and 29 of the text of the affidavit. Annexure 2A comprises a notice disputing the validity of a Bankruptcy Notice served upon Mr Watts and his wife in respect of the same debt which is the subject of the Creditor’s Statutory Demand which is sought to be set aside in the present proceedings. The notice disputing the Bankruptcy Notice is dated 8 April 2009 and has attached to it a calculation which Mr Watts submits constitutes the correct calculation showing the present state of the account between the plaintiff and the first defendant in respect of the two loans made by the first defendant to the plaintiff in 2004.
9. With the exception of the two paragraphs to which I have already referred and Annexure 2A to the affidavit, the annexures to Mr Watts’ affidavit of 14 April 2009 comprise documents all of which could have been tendered at the hearing before me on 10 December 2008. Indeed, many of them were in fact tendered at that hearing. The same observation may be made in respect of the text of the affidavit in the sense that much of what is said there has either already been said or could have been said at the hearing before me on 10 December 2008.
10. In order to have the affidavit of Mr Watts sworn on 14 April 2009 (including the annexures to that affidavit) admitted into evidence, Mr Watts would need to show either that the evidentiary material set out in that affidavit comprised facts and matters which had arisen after the hearing or which were not known to him or could not have been ascertained by him by the exercise of reasonable diligence at the time the hearing took place on 10 December 2008 and that it is in the interests of justice that the material be admitted into evidence (see The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 at [4]–[8]; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]; and Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587; (2006) 58 ACSR 414 at [18]). One of the important considerations to be weighed in the interests of justice in the present case is the public interest in the finality of litigation.
11. Given that most of the documents attached to Mr Watts’ affidavit are already in evidence and that most of the assertions and contentions sought to be advanced in the affidavit have already been put, in my judgment the plaintiff has failed to establish that it should be permitted to re-open in the manner sought by it. Further, no explanation has been offered as to why the material set out in Mr Watts’ latest affidavit was not presented in the way in which it has now been presented when the hearing before me took place on 10 December 2008.
12. When asked in argument whether Annexure 2A and the paragraphs in the affidavit to which I have referred could be treated as a submission only and not as evidence, Mr Watts accepted that that material could be treated in that fashion and that, if the material was considered by me on that basis, he would be satisfied. Mr Watts told me that his main concern was to ensure that I had, in the one place and in a manner which was clear and coherent, his contentions concerning the correct way of calculating the amounts due under the loan agreements (if any).
13. Mr Skinner, who appears for the first defendant today, does not oppose my receiving that material on that restricted basis for that purpose.
14. Accordingly, for the reasons which I have explained, I refuse the plaintiff leave to reopen. However, I will receive as a submission the material contained in paragraphs 3 and 29 of the affidavit sworn by Mr Watts on 14 April 2009 together with Annexure 2A to that affidavit.
15. I propose to order that the costs of the Notice of Motion filed on 14 April 2009 be costs in the proceedings.
    

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated: 22 April 2009

	Mr G Watts appeared for the Plaintiff (by leave)
Counsel for the First Defendant:	Mr BJ Skinner
Solicitor for the First Defendant:	Gadens Lawyers
	There was no appearance either by or on behalf of the Second and Third Defendants

Date of Hearing:	21 April 2009
Date of Judgment:	21 April 2009