Trilogy has narrowed its current claim against the former directors and officers of City Pacific Limited (Receivers and Managers Appointed) (In Liquidation) to focus on the core claims arising from loan advances made to Atkinson Gore Agricultural Pty Ltd (Receiver and Manager Appointed) (In Liquidation) (AGA). By narrowing the focus of the claims, Trilogy considers that pre-trial applications made by the defendants will be minimised, the overall length and cost of the trial will be reduced and the chances of obtaining an early date for trial will be increased.
Defendants’ application to transfer proceeding
In February 2013, the defendants advised that they would apply for a transfer of this case to the Supreme Court of Queensland where a separate recovery action against guarantors, Messrs Hartnett and Perry, is being conducted arising out of loan advances to Bullish Bear Holdings Pty Ltd (Receiver & Manager Appointed) (Bullish Bear). The Court directed that any such application be lodged by 8 March 2013. On 6 March 2013 Trilogy’s solicitors sent a letter to the defendants’ solicitors detailing why such transfer application would fail. If the proceeding was transferred to the Supreme Court of Queensland this would likely have resulted in a significant delay in obtaining a trial date and substantial increase in costs. The defendants chose not to lodge their application by 8 March 2013. They subsequently delayed more than two months before ultimately lodging their application on 15 May 2013, a few days before the matter was listed for a pre-trial directions hearing at which Trilogy had indicated it would be seeking a trial date.
In narrowing the focus of Trilogy’s claim to the AGA advances, the defendants’ application to transfer the case to the Supreme Court of Queensland was made redundant. On 21 May 2013, during the pre-trial directions hearing, Justice Griffiths dismissed the transfer application. Trilogy has always maintained the transfer application would fail. However, the hearing of that application itself would have caused delay and additional costs. This has now been avoided. The recovery action against Messrs Hartnett and Perry in relation to the Bullish Bear loan facility separately continues in the Supreme Court of Queensland.
Article in the Gold Coast Bulletin
On 24 May 2013, an article was published in the Gold Coast Bulletin regarding some of the events referred to in this update. There were a number of inaccuracies reported in that article, as detailed below:
- The title of the article “City Pacific in King Tide win” is misleading. Trilogy’s claim in respect of advances made to Bullish Bear has been withdrawn so as to reduce the number of issues in dispute and focus on the claims against the defendants regarding loan advances made to AGA over lands known as “Saddleback” (in the Gold Coast hinterland). The court has not considered (let alone determined) the Bullish Bear claims. This is not a “win” for the defendants.
- The reference to the $25 million claim regarding Bullish Bear is inaccurate. The claim relating to Bullish Bear was for $16.9 million plus interest, as was set out in the claim.
- Similarly the reference to the $35 million claim still being pursued is inaccurate. The claim relating to the loan advances to AGA is for $37.2 million plus interest, as detailed in Further Amended Statement of Claim filed by Trilogy on 22 May 2013. It follows that the Bullish Bear claim did not constitute “half” of the current action.
- There is no “second case” regarding Bullish Bear brought against the defendants. The AGA and Bullish Bear claims formed part of a single action commenced by Trilogy in April 2012.