Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 27 October 2021
• Neutral Citation: [2021] FCA 1344
• Court: Federal Court
• Date: 27 October 2021

FEDERAL COURT OF AUSTRALIA

Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (No 2) [2021] FCA 1344

File number:	VID 1277 of 2017
Judgment of:	MIDDLETON J
Date of judgment:	27 October 2021
Date of publication of reasons:	3 November 2021
Catchwords:	CORPORATIONS – application for leave to proceed against respondents under s 444E(3) of the Corporations Act 2001 (Cth) – factors to take into account – whether essential to have prima facie case or ‘solid foundation’
Legislation:	Corporations Act 2001 (Cth)
Cases cited:	Attard v James Legal Pty Ltd (2010) 80 ACSR 585; [2010] NSWCA 311 Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (subject to Deed of Company Arrangement) (2016) 116 ACSR 353; [2016] FCA 1246 Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) [2020] FCA 1824 Ogilvie-Grant v East (Re Gordon Grant & Grant Pty Ltd) [1983] 2 Qd R 314 Sheahan v Carrier Air Conditioning Pty Ltd (1997) 189 CLR 407 Thompson Land Limited v Lend Lease Shopping Centre Development & Anor [2000] VSC 108 United Petroleum Pty Ltd v Bonnie View Petroleum Pty Ltd (in liq) [2017] VSC 185 Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	30
Date of hearing:	1 October 2021 and 27 October 2021
Counsel for the Applicants:	Mr M D Wyles QC with Mr Curry and Mr Pintos-Lopez
Solicitor for the Applicants:	Hall & Wilcox
Counsel for the First and Second Respondents:	Mr P D Crutchfield QC with Ms F Cameron
Solicitor for the First and Second Respondents:	King & Wood Mallesons
Counsel for the Third, Fourth and Fifth Respondents:	Mr C N Bova SC with Ms A Carr
Solicitor for the Third, Fourth and Fifth Respondents:	Norton Rose Fulbright
Counsel for the Seventh, Eighth and Fourteenth Respondents:	Mr H N G Austin QC with Ms J A Findlay
Solicitor for the Seventh, Eighth and Fourteenth Respondents:	Crawford Legal
Counsel for the Tenth and Nineteenth Respondents:	Mr C R Brown
Solicitor for the Tenth and Nineteenth Respondents:	HWL Ebsworth Lawyers
Counsel for the Twelfth and Thirteenth Respondents:	Mr P Fary SC with Mr A R Di Stefano
Solicitor for the Twelfth and Thirteenth Respondents:	Norton Rose Fulbright
Counsel for the Fifteenth Respondent:	Mr M Sheldon
Solicitor for the Fifteenth Respondent:	HFW Australia
Counsel for the Sixteenth Respondent:	Mr E A J Hyde
Solicitor for the Sixteenth Respondent:	Corrs Chambers Westgarth
Counsel for the Twentieth, Twenty-First, Twenty-Second and Twenty-Third Respondents:	Mr M J Galvin QC with Mr R J Harris
Solicitor for the Twentieth, Twenty-First, Twenty-Second and Twenty-Third Respondents:	Maddocks Lawyers
Counsel for the Twenty-Fifth Respondents:	Ms V Whittaker SC with Mr Sharma
Solicitor for the Twenty-Fifth Respondents:	Colin Biggers & Paisley

ORDERS

		VID 1277 of 2017
BETWEEN:	HASTIE GROUP LIMITED (IN LIQUIDATION) (ACN 112 803 040) First Applicant ; CRAIG DAVID CROSBIE (IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATOR OF THE HASTIE GROUP COMPANIES LISTED HEREIN) Second Applicant ; DAVID LAURENCE MCEVOY (IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATOR OF THE HASTIE GROUP COMPANIES LISTED HEREIN) (and others named in the Schedule) Fourth Applicant
AND:	MULTIPLEX CONSTRUCTIONS PTY LTD (FORMERLY BROOKFIELD MULTIPLEX CONSTRUCTIONS PTY LTD) First Respondent ; BROOKFIELD MULTIPLEX FSH CONTRACTOR LIMITED Second Respondent ; LENDLEASE BUILDING PTY LIMITED (FORMERLY BOVIS LEND LEASE PTY LTD AND LEND LEASE PROJECT MANAGEMENT & CONSTRUCTION (AUSTRALIA) PTY LIMITED (and others named in the Schedule) Third Respondent

order made by:	MIDDLETON J
DATE OF ORDER:	27 October 2021

THE COURT ORDERS THAT:

Leave to proceed

1. For the purposes of sub-paragraphs 12(g) and 12(v) of the orders made by the Honourable Justice Middleton on 1 October 2021, the Sixth, Eleventh, and Fourteenth Applicants have leave, pursuant to section 444E(3) of the Corporations Act 2001 (Cth), to proceed against the Twelfth and Thirteenth Respondents in respect of the issues in the list of issues annexed to these orders.

Other Orders

2. Liberty to apply.

3. Costs reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure: list of issues as between the Sixth, Eleventh, and Fourteenth Applicants and the Twelfth and Thirteenth Respondents

A. List of issues

1 The subcontract (and terms relevant to the provision of bank guarantees) between A6 and R12 [43], [44], A6 and R13 [134], [135], [192], [193], A11 and R12 [1], [2], A11 and R13 [163]-[164], A14 and R12 [85], [86].

2 Whether upon its proper construction the subcontract provided that any draw down of funds on the bank guarantees issued at the request of the applicants, did not confer on R12 or R13 any proprietary interest in the monies drawn down, nor any immediate entitlement to treat the monies drawn down as “Grocon’s own” – A6 [45], [136], [194]; A11 [3], [165]; A14 [87].

3 Payment by the Hastie companies of the fees charged by the banks upon issue and continuing provision of the bank guarantees and assumption by each of the Hastie companies at issue, of liability to repay the face value of the bank guarantee plus interest if drawn – A6 [47]-[49], [52], [138]-[140], [143], [198]; A11 [5], [10], [167]-[169], [172]; A14 [5], [91].

4 Whether each of the bank guarantees amounted to financial accommodation purchased by each Hastie company from the issuing bank, and was a chose in action as between the Hastie company and the bank (i.e. property of that Hastie company within the meaning of s 9 of the Act)? – A6 [54], [145], [200]; A11 [12], [174]; A14 [93].

5 Whether, in drawing down on the bank guarantees through the banking system there has been a debit in the amount of the face value of the bank guarantee to the relevant loan facility extended to the Hastie...