DGR Global Ltd v P.T. Limited as trustee of the Armour Energy Security Trust [2025] QSC 8

SUPREME COURT OF QUEENSLAND CITATION: DGR Global Ltd v P.T. Limited as trustee of the Armour Energy Security Trust [2025] QSC 8 PARTIES: DGR GLOBAL LTD ACN 052 354 837 (plaintiff) v P.T. LIMITED ACN 004 454 666 AS TRUSTEE OF THE ARMOUR ENERGY SECURITY TRUST (first defendant) PERPETUAL CORPORATE TRUST LIMITED ACN 000 341 533 AS TRUSTEE FOR THE ARMOUR ENERGY NOTE TRUST (second defendant) RICHARD SCOTT TUCKER AND ROBERT WILLIAM HUTSON IN THEIR CAPACITY AS RECEIVERS AND MANAGERS OF ARMOUR ENERGY LIMITED ACN 141 198 414, ARMOUR ENERGY (SURAT BASIN) PTY LIMITED ACN 607 504 905, ARMOUR ENERGY (VICTORIA) PTY LTD ACN 167 298 240, COERA PTY LTD ACN 636 658 574, HOLLOMAN PETROLEUM PTY LTD ACN 126 728 498, CORDILLO ENERGY PTY LTD ACN 636 904 204, MCARTHUR OIL AND GAS LIMITED ACN 648 622 404 and MCARTHUR NT PTY LTD ACN 649 856 315 (ALL ADMINISTRATORS APPOINTED) (ALL RECEIVERS AND MANAGERS APPOINTED) (third defendant) ADZ ENERGY PTY LTD ACN 672 466 198 (fourth defendant) SHUNKANG HOLDING GROUP CO. LIMITED (a company incorporated in the People’s Republic of China) (fifth defendant) BAKER & MCKENZIE (A FIRM) (sixth defendant) FILE NO: BS15575 of 2023 DIVISION: Trial division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 30 January 2025 DELIVERED AT: Brisbane HEARING DATE: 16 December 2024 JUDGE: Hindman J -- 1 of 22 -- 2 ORDERS: The parties are to bring in draft orders reflecting these reasons. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ADDING NEW CAUSE OF ACTION WITHIN LIMITATION PERIOD – where the applicant seeks leave to amend to the claim and statement of claim – where the applicant seeks to amend a claim for tortious conspiracy to clarify that the unlawful act alleged, namely the appointment of receivers for an improper purpose, includes the intention to effect an improper appointment of voluntary administrators – where the applicant seeks to include the first and second defendants in the tortious conspiracy claim – where, if the sought amendment to the tortious conspiracy claim is granted, the applicant seeks to delete the other claims from the current tortious conspiracy claim – where the applicant seeks to delete claims for subrogation – where the application seeks to address further matters arising from disclosure – where the applicant seeks leave to plead an expanded counterfactual that has the effect of increasing the damages claim – where trial dates have been set and the parties wish to maintain the scheduled trial dates – where the applicant submits that leave to amend is being sought to plead reasonable causes of action, which are strong and properly pleaded, that are not out of time – where the applicant submits that delays in pleading are due to the respondents’ non-disclosure amongst other issues – where the respondents submit that the sought amendment to the tortious conspiracy claim is not arguable and does not disclose a proper cause of action – where the respondents submit that any new allegation that the appointment of administrators was invalid is not maintainable – where the respondents submit that the applicant’s delay in seeking to amend the statement of claim is unexplained – where the respondents submit that the expanded counterfactual would require further adjournment of trial – where the respondents submit that the narrative style of pleading in the proposed amendments are objectionable – whether leave to amend should be granted Uniform Civil Procedure Rules 1999 (Qld), r 5 Aklia Holdings Pty Ltd v The Carter Group (in liq) [2017] QSC 75 Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175 Chen v Karandonis [2002] NSWCA 412 DGR Global Ltd v P.T. Limited as trustee of the Armour Energy Security Trust [2024] QSC 90 DGR Global Ltd v P.T. Limited as trustee of the Armour Energy Security Trust [2025] QSC 5 Lee v Abedian [2017] 1 Qd R 549 Meretz Investments NV v ACP Ltd [2007] Ch 197 -- 2 of 22 -- 3 Meretz Investments NV v ACP Ltd [2008] Ch 244 Sanrus Pty v Monto Coal 2 Pty Ltd (No 7) [2019] QSC 241 Sevilleja v Marex Financial Ltd [2020] UKSC 31 COUNSEL: J Peden KC with R Tooth and H Hadgraft for the plaintiff M Hodge KC with A O’Brien for the first and second defendants D de Jersey KC with M Ziebell for the third and fourth defendants P O’Higgins KC with L Gamble for the fifth defendant D O’Sullivan KC with S McCarthy and S Gibson for the sixth defendant SOLICITORS: DLA Piper Australia for the plaintiff Corrs Chambers Westgarth for the first and second defendants Johnson Winter Slattery for the third and fourth defendants Thomson Geer for the fifth defendant Hall & Wilcox for the sixth defendant Introduction [1] These reasons concern DGR’s application for leave to amend its further amended claim (CDI 185) and second further amended statement of claim (CDI 186) in the form of a proposed second further amended claim and third further amended statement of claim. [2] The application was heard on 16 December 2024. The application was lengthy and required the court to sit in the usual court vacation period and beyond usual court hearing hours. That is because there is a four week trial scheduled to commence on 22 April 2025. The two to three week trial that had been scheduled to commence on 2 December 2024 was previously adjourned. All parties have expressed a desire to maintain the new scheduled trial dates if possible. All interlocutory disputes therefore have to be heard and determined as expeditiously as possible. [3] Accordingly, these reasons are necessarily presented in a summary type way to ensure the proceeding continues to progress and the parties have the best prospects of maintaining the scheduled trial dates. Background to the progress of the proceeding [4] A general background to the proceeding can be found in DGR Global Ltd v P.T. Limited as trustee of the Armour Energy Security Trust [2024] QSC 90. The recent -- 3 of 22 -- 4 security for costs decision is DGR Global Ltd v P.T. Limited as trustee of the Armour Energy Security Trust [2025] QSC 5. [5] Given the relevance to this decision of the application of well-known principles derived from Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175, it is necessary to set out, at least in a summary way, the key procedural history of the proceeding. [6] The first proceeding (BS15575/23) was commenced by DGR by way of originating application on 8 December 2023 (the subrogation proceeding). The nature of that proceeding was that DGR sought a declaration that upon payment of the secured debt owed by Armour under certain Notes, it was entitled to be subrogated to the right of the Perpetual defendants under relevant security documents. Application was made shortly after the proceeding was commenced to have the proceeding managed on the commercial list. That application was granted on 11 December 2023. [7] The purpose of the commercial list is publicised, and this is precisely the type of case that the court is willing to offer the advantages of being dealt with as a commercial list matter. The case was initially managed by Brown J (as she then was) and was reassigned in mid-December 2023 upon the elevation of Brown J to the Court of Appeal. [8] The second proceeding (BS16263/23) was commenced by DGR by way of originating application on 21 December 2023 (the validity proceeding). The nature of that proceeding was to challenge the validity of the appointment of receivers to certain property of Armour. Case management of the second proceeding, in conjunction with the first proceeding, commenced on 22 December 2023. Orders were made that day for DGR to deliver statements of claim in both proceedings. That was done in late January 2024. [9] In mid-February 2024 the then parties confirmed that they were seeking a ten-day trial (to deal with both proceedings) in the second half of the year, preferably after 25 November 2024. [10] In accordance with the practice of the commercial list, at an early stage of the proceedings, in early April 2024, although the proceedings were then certainly not ready for trial, the court set trial dates – two weeks commencing 2 December 2024 -- 4 of 22 -- 5 with the possibility of traversing into a third week, in accordance with the request of the then parties. Those trial dates permitted the possibility that the outcome of the proceedings would be known by the end of 2024 given commercial list judges aim to deliver commercial list judgments within 28 days of the conclusion of trial. Given the state of the court’s calendar at the time, arrangements were made to have another commercial list judge hear the trial, although I continued to manage the proceedings to maintain continuity. [11] By application filed on 22 March 2024 (CDI 44) DGR sought orders: (a) consolidating the two proceedings; (b) for leave to amend to include claims for misleading and deceptive conduct and unconscionability under the ACL against ADZ and Shankung (with leave to join Shankung, who was not yet a defendant, as the fifth defendant); (c) for leave to amend to include a claim against Baker McKenzie (with leave to join Baker McKenzie, who was not yet a defendant, as the sixth defendant) for being a person involved in the above contraventions; (d) for leave to amend to include a misleading and deceptive conduct claim against the Perpetual defendants. [12] The application succeeded. The two proceedings were consolidated into one by orders dated 22 May 2024 (CDI 93). DGR filed its consolidated and amended statement of claim on 21 May 2024 (CDI 77-78) that expanded its case significantly (which necessitated Baker McKenzie, joined as the sixth defendant, ceasing to act for the first to fourth defendants as it had been). [13] The amendment of proceedings and the joinder of additional parties did always appear to have the possible consequence of imperilling the then set trial dates. The position was made worse by ongoing disputes about pleadings, amongst other interlocutory disputes. Defences were filed by the defendants in June 2024. Replies were filed by DGR in mid-August 2024. [14] DGR sought further leave to amend its consolidated and amended statement of claim by an application filed 30 August 2024 (CDI 122). The supporting material initially accompanying that application included a 17-volume affidavit. The proposed second -- 5 of 22 -- 6 further amended statement of claim that was delivered to the defendants included, for the first time, a tortious conspiracy claim (five different claims of that nature), as well as other new claims. [15] On 13 September 2024 in response to that application (after a full day of hearing) DGR was granted leave (CDI 176) to file a further amended statement of claim that (1) included a new misleading and deceptive conduct claim as to silence and a new claim that ADZ was knowingly involved in the misleading and deceptive conduct by the Shankung but (2) did not include other proposed allegations. The application for leave to amend was otherwise adjourned to a date to be fixed and it was directed that by 30 September 2024 DGR was to deliver any proposed second further amended statement of claim to the defendants. [16] The further application date of 2 October 2024 was adjourned at the request of DGR. [17] The position of the defendants initially was that further leave to amend the statement of claim might not be opposed if sufficient particulars were provided by DGR. To that end, DGR generated a particulars matrix which it updated on 4 October 2024. That was sufficient to persuade all of the defendants, bar the Perpetual defendants, to agree to the then proposed amendments to the pleading. [18] That led to orders being made on 23 October 2024 (CDI 200) that gave the defendant leave to amend its claim and statement of claim as against ADZ, Shankung and Baker McKenzie to include the tortious conspiracy claims, but DGR’s application for leave to amend insofar as it concerned the proposed tortious conspiracy claims against the Perpetual defendants was adjourned for hearing to 19 November 2024 (to allow certain further disclosures to take place, and to give DGR more time). [19] Those orders permitted DGR, on 25 October 2024, to file its further amended claim, second further amended statement of claim and matrix of consolidated particulars (CDI 185-187). [20] In the meantime, by 10 October 2024 is had become plain to all involved that the ongoing interlocutory disputes including in respect of pleadings, along with the progress of the matter generally meant that there was no realistic prospect that the trial would be ready to proceed as scheduled to commence on 2 December 2024. By 10 October 2024 there was no opposition to an adjournment of the trial occurring. -- 6 of 22 -- 7 The reality facing all parties was that the proceeding simply could not be ready for trial by the scheduled dates even though most of the defendants were highly reluctant to forego the scheduled trial dates. Baker McKenzie and the Perpetual defendants were particularly concerned in circumstances where they perceived their defences to the proceeding to be strong (if not overwhelming) to have the serious allegations made against them heard and determined as soon as possible. [21] The parties agreed that new trial dates should be extended to four weeks and dates in the first half of 2025 were sought. New trial dates, four weeks commencing on 22 April 2025, were confirmed (CDI 189). There remained a substantial amount of work required to be completed by all parties to get the proceeding ready for trial by that date. [22] On or about 15 November 2024 DGR delivered to the defendants a proposed third further amended statement of claim (which meant the planned hearing on 19 November 2024 could not proceed) that proposed to amend the claims made against all of the parties. There were some relatively inconsequential further amendments of form made to that proposed pleading since that time (mainly a Schedule C being incorporated into the body of the pleading). The precise proposed pleading with which the hearing on 16 December 2024 and these reasons are concerned was delivered by DGR to the defendants on 29 November 2024 and it is an attachment to the amended application dated 29 November 2024, filed by leave on 16 December 2024. [23] The proposed amendments to the current pleading are opposed by all defendants. There is a wide cross-over between the defendants in terms of the submissions advanced in opposition to the amendments, but it needs to be recalled that the defendants are not all in the same position vis-à-vis the outcome of the application for leave to amend. [24] If the application is not successful, then DGR intends to proceed to trial based on its current pleading – the further amended claim and the second further amended statement of claim (supplemented by the consolidated particulars matrix) (CDI 185- 187). That would mean, amongst other matters, that there would be no tortious conspiracy claim against the Perpetual defendants and no new counterfactual pleaded against any of the defendants. -- 7 of 22 -- 8 [25] I note though that even if DGR’s application for leave to amend is not successful, there is doubt (at least in my mind) as to whether the proceeding (in its current form) will be ready for trial by 22 April 2025. However, no party has yet applied to adjourn the trial. [26] Interlocutory disputes have featured heavily in the proceeding – joinder, pleadings, disclosure, non-party disclosure, privilege disputes, security for costs and so on. There have been several commercial list reviews. The file now runs to some 15 boxes of material. As the court expects, particularly of sophisticated commercial parties, interlocutory applications were commonly the subject of further negotiation between the parties (which sometimes did narrow issues) but resulted in delays with adjournments of applications. DGR’s expressed need for further disclosure from parties and non-parties has also resulted in the hearing of interlocutory applications being delayed. On reflection, I have pondered whether my willingness to allow adjournments to permit further negotiations and further disclosures has been counterproductive to the progression of the proceeding and matters would have been more quickly finalised by me simply hearing argument based on the material then available and making orders. But what is done is done. The nature of the proposed amendments [27] DGR identifies that there are five main aspects to the leave to amend sought: (a) amending the current second claim (a tortious conspiracy claim) to clarify that the unlawful act alleged, namely the appointment of receivers for an improper purpose, includes the intention to effect an improper appointment of voluntary administrators to Armour Energy (QLD) Pty Ltd; (b) to include the Perpetual defendants as persons involved in that tortious conspiracy claim (there presently not being on foot any tortious conspiracy claim against the Perpetual defendants); (c) to delete the other claims (1, 3, 4, 5) from the current tortious conspiracy claim as no longer necessary (if leave to amend the second claim is given); (d) to delete the subrogation claims (as no longer having utility) together with challenges to the receivership of the subsidiary companies; (e) to include further matters arising from ongoing disclosure. -- 8 of 22 -- 9 [28] Insofar as the second claim is concerned, DGR’s summary of the relevant facts appears in the plaintiff’s outline at [46]–[149]. It deals with the alleged unlawful act from [154]–[175]; the intention to injure from [176]–[180]; and how the acts of the Perpetual defendants were voluntary from [181]–[193]. [29] The defendants are particularly concerned with (a) and (b) above. Another main aspect of the proposed amended pleading with which the defendants are particularly concerned is the pleading of an expanded counterfactual that has the effect of increasing the damages claim from one in the order of $28m, to one in the order of $138m. There is also an issue raised about a new invalidity case regarding the appointment of administrators. Principles to be applied on the application for leave to amend [30] The principles to be applied on the application for leave to amend are not in dispute between the parties1 and will not be set out here. Summary of DGR’s position on the leave application [31] Without wishing to do injustice to DGR’s lengthy written and oral submissions on the application, its position on why it should be given leave to amend can be summarised as: (a) DGR seeks leave to amend to plead reasonable causes of action available to it, that have been properly pleaded by it, and that are not out of time; (b) DGR says the proposed cause of action (the amended tortious conspiracy case) is strong, and well supported by documents that DGR has pleaded in detail; (c) insofar as there have been delays by DGR in finalising its pleading, that is at least in part due to non-disclosure by various of the defendants, which still remains an issue; (d) the trial on the amended pleading could still be accommodated in the existing trial dates: DGR is motivated to have its claim heard and determined promptly; (e) the interests of justice favour the amendments being permitted. 1 Refer to DGR’s outline at [26]-[29]; Perpetual’s outline at [5]-[7]; Armour and ADZ’s outline at [11] and [50]-[51]; Shankung’s outline at [4]-[8]. -- 9 of 22 -- 10 [32] It makes other specific submissions in reply to the reasons why the defendants say DGR should not get leave to amend, that I will deal with where appropriate below. [33] As I recalled a very senior (but now retired) judge doing, at the commencement of the hearing of the application for leave to amend on 16 December 2024, I did enquire of DGR whether having had the opportunity to review the defendants’ submissions on the application, it wished an opportunity to put before the court any further amended version of the claim and statement of claim to be considered. Obviously, there is often little sense in determining an application of this nature if the plaintiff will simply seek to further amend at a future time (including to overcome any identified problems with its pleading). I was assured that only subject to the resolution of ongoing disclosure fights between the parties that might require some further documents to be pleaded, the case was pleaded in the manner in which DGR wished to take to trial. However, as the hearing proceeded, it became obvious that DGR does accept that there are still some issues with its pleading that will need to be addressed by it. [34] There is a further matter that should be recorded at the outset. In this application the defendants make many complaints about the general conduct of DGR in the proceeding which include pleading problems including in respect of the proper particularisation of the case, delays, lack of explanation for delays, the late changing case and the like. In response in a general way DGR says all or much of that can be laid at the feet of the defendants who have acted (allegedly) deviously and secretly, have resisted disclosure, have resisted pleading, have taken every point that might be taken and the like. It is simply not possible for me to reach any concluded view about such allegations made by either side without conducting a trial. This is a large and complex piece of commercial litigation funded by mostly well-resourced or sophisticated clients. The litigation is being hard fought, but so far generally there has not been conduct in the procedure of litigation that has caused me to be concerned that the parties have not been generally complying with their obligations under the rules of court, including particularly rule 5 UCPR. I do need to exercise caution then when considering the complaints about the conduct of one party against another in the litigation when the merits of those complaints have not been fulsomely tested. The grounds of opposition to leave to amend -- 10 of 22 -- 11 [35] The defendants raise several grounds of opposition to leave to amend, summarised below. [36] First, it is alleged that the new pleaded tortious conspiracy case is not arguable and does not disclose a proper cause of action. In summary it is alleged that (1) the central act was not unlawful; (2) even if it was, on the pleaded facts it was only directed at Armour and not DGR; (3) the pleaded facts do not establish the connection from intention to injury or that DGR has suffered any loss. [37] Second, insofar as the pleading introduces a new allegation that the appointment of administrators was invalid (particularly [53AA]), the defendants say that allegation is not maintainable. [38] Third, the delay in formulating the proposed amendments, but particularly the counterfactual, should be explained, but is not. The introduction of the counterfactual will necessitate new directions, vacation of the existing trial dates and an eight-week trial. The delay causes real prejudice to the defendants in the circumstances of the alleged serious wrongdoing. [39] Fourth, the counterfactual discloses no reasonable cause of action. It is alleged to be an indecipherable causation counterfactual that fails to comply with the rules of pleading. [40] Fifth, the narrative style of pleading is attacked along with other particular pleading points made. The new tortious conspiracy case [41] The principles underlying a claim for tortious conspiracy do not appear to be in dispute between the parties. But there are several complaints made about the new tortious conspiracy case – as summarised at [36]–[37] above. [42] First, was an issue dealt with orally by Mr O’Sullivan KC about which I expressed a preliminary opinion during the application hearing, indicating that I was unlikely to accept Mr O’Sullivan KC’s submissions on a summary basis. In my view, then and now, the issue raises a triable issue and therefore would not be a proper ground for refusing leave to amend. The issue concerns whether the court could conclude on a summary basis that there was no unlawful act. -- 11 of 22 -- 12 [43] Mr O’Sullivan KC referred to a number of cases in which it has been confirmed that the appointment of receivers will not be for an unlawful purpose if at least one of the purposes for the appointment is the recovery of the secured debt. If that purpose exists, it will not matter that another purpose might be to “snaffle” the assets (as is alleged by DGR here). I have no difficulty in accepting those cases as reflecting the law. [44] Mr O’Sullivan KC submitted that even if a conclusion were reached that a purpose of the appointment of receivers in this case was to acquire the assets (alleged by DGR to be an unlawful purpose), it must also have been a purpose to have the secured debt paid as that would be a necessary incident of the first purpose being carried into effect (whichever DOCA of the two competing DOCAs succeeded – both DOCAs contemplating repayment of the secured debt). [45] I do not agree that that is the only conclusion that could be reached at trial. Just because something might occur (the repayment of the secured debt) as a possible consequence of implementing a plan (acquiring the assets), and the something does in fact occur in the implementation of the plan, does not necessarily compel a conclusion that the something (repayment of the secured debt) was a purpose of the plan. What I just have posited appears to me to be contemplated in the decision of Justice Lewison at page 199 in Meretz Investments NV v ACP Ltd [2007] Ch 197 (affirmed on appeal: [2008] Ch 244) wherein it speaks to the genuine purpose. [46] DGR’s proposed pleading in terms asserts positively in the opening words to [35X] that “… the purpose of the appointment of receivers was not to receive any secured debt.” What then appears at subparagraph (c) must be alleged to be something other than receiving the secured debt. [47] Thus I consider there is scope on the proposed pleading for DGR to argue that recovery of the debt was not a genuine purpose of the appointment of receivers and that the appointment of receivers was unlawful on the basis that the purpose of the appointment was to acquire (or “snaffle”) the assets. [48] Accordingly, this is not a basis upon which I would refuse leave to amend in respect of the new tortious conspiracy case. -- 12 of 22 -- 13 [49] Second, is an issue about whether in this case there can be no unlawful means because the relevant conduct (namely, the appointment of receivers and administrators for an improper purpose) was not capable of being directed at DGR. This is an issue that was orally expanded upon by Mr Hodge KC. [50] The elements of an unlawful conspiracy cause of action are set out by Bond J in Lee v Abedian [2017] 1 Qd R 549 at [70] – particularly at subparagraphs (b) and (d). It is an element of the tort that the unlawful act must be intended to injure the plaintiff. [51] The defendants’ point here is a simple one. The relevant parts of the proposed pleading only plead conduct directed at Armour – not at DGR. See at [21]–[31] of the proposed pleading: where DGR is mentioned in those paragraphs it is not related to the appointment of receivers and administrators being directed to DGR or even matters from which that might be inferred. [52] There is substance to the defendants’ complaint. The proposed pleading does not adequately tie to the alleged unlawful act to an intention (express or to be inferred from identified facts) to harm DGR. [53] [53GB(n)] of the proposed pleading, whilst making some reference to persons in the position of DGR, is no answer to the complaint. Just because in a different scenario, persons in the position of DGR would stand to gain a benefit, is not a fact (of itself at least) from which an intention to injure persons in the position of DGR could be inferred. [54] [46P] of the proposed pleading is not an answer to the complaint either. [55] The consequence is that DGR should not be given leave to amend to include the new tortious conspiracy case in its present form. [56] Third, the defendants complain about the plaintiff’s pleading of causation and loss. [57] As to causation, [53GH] of the proposed pleading simply provides “The commission of the above unlawful acts caused DGR to suffer loss and damage.” Reference is then made to reliance upon [51AM]. That paragraph provides that “In the premises of the matters pleaded in paragraphs 51AI to 51AL, DGR has suffered loss and damage.” But those matters referred to are matters that precede the alleged tortious -- 13 of 22 -- 14 conspiracy – that is, matters that happened before 10 November 2023. That part of the pleading clearly has in contemplation the causation analysis for the misleading and deceptive conduct claim. It is not a proper pleading of any consequence alleged to have arisen because of the alleged unlawful act. [58] The defendants went so far in oral submissions to contend that there is no arguable possibility on causation arising from the alleged tortious conspiracy because there were no consequences that flowed from the alleged unlawful act. I would only go so far as to say none is presently pleaded and the tortious conspiracy case currently sought to be pleaded is fatally flawed unless such a pleading can be advanced. [59] Again, the consequence is that DGR should not be given leave to amend to include the new tortious conspiracy case in its present form. [60] As to loss, the other part of the defendants’ complaint concerns the defendants’ submission that DGR’s claim for damages comprises entirely reflective loss. The parties referred to the case of Aklia Holdings Pty Ltd v The Carter Group (in liq) [2017] QSC 75 at [69]–[70] as outlining the relevant principles regarding reflective loss. In a very summary way, the position of DGR regarding the defendants’ complaints that the loss claimed to be suffered by DGR is in fact reflective loss and therefore not recoverable by DGR appears to be: (a) reflective loss is not a matter that should be determined at this point in time in the proceeding. That is because ordinarily an assessment of reflective loss is made by reference to a defence that pleads how the loss is actually reflective. That will require the defendants to plead that someone else has the same claim (here Armour) and that their loss is the same loss as claimed by DGR. Here, the pleadings are not at a point where the defendants have pleaded how the losses claimed are actually unrecoverable reflective losses. The proper approach would be to allow the defendants to plead and DGR to reply, at which time the defendants could apply for a summary judgment should they believe they have grounds to do so. Further, there may be issues here about whether the cause of action is the same (it is contentious as to whether the cause of action need be the same), or whether the same loss exists – that should be considered before the issue of reflective loss would operate to deprive DGR of its claims; -- 14 of 22 -- 15 (b) insofar as the defendants have identified a case (Chen v Karandonis [2002] NSWCA 412) that suggests that even the claim in relation to the debt owed by Armour to DGR is in fact in the nature of reflective loss unrecoverable by DGR, that case has been the subject of criticism in the UK as being wrongly decided (see the case of Sevilleja v Marex Financial Ltd [2020] UKSC 31) and this court should therefore be reluctant to determine the issue here on a summary basis. [61] Without delving further into the merits of the arguments about reflective loss, I have decided that I am not going to deal with the issue comprehensively in this application for leave to amend because: (a) this is not a new issue that arises as a consequence of DGR’s application for leave to amend. Based on the position advanced by the defendants in the application, it is plainly an issue that potentially affects DGR’s claims as presently articulated (both in terms of the alleged loss of repayment of debt owed to it by Armour and the alleged loss of the value of its shareholding in Armour). The defendants could have raised the issue (including by way of a strike out application or a summary judgment application) at an earlier time and they did not do so; (b) this is not a strike out application or summary judgment application. Refusing DGR the sought leave to amend would not necessarily finally resolve the issue of reflective loss in respect of the current pleaded case which is going to trial. If a strike out application or summary judgment application were made now (with the scheduled trial dates not far away) I might refuse to deal with such an application on discretionary grounds; (c) the issue about reflective loss at the trial is not made particularly more complex or lengthy if DGR is given leave to amend; (d) whilst there are intermediate appeal court decisions which appear to strongly favour the submissions advanced by the defendants, and which I may ultimately be obliged to follow, there is some merit to DGR’s submission that the law in the area may develop in a different way. I would not be inclined to decide the issue without exhaustive submissions from both parties (without the time pressures that exist in this application). -- 15 of 22 -- 16 [62] Accordingly the issue of reflective loss is not a basis upon which I would refuse to give DGR leave to amend. The new invalidity case [63] Insofar as the pleading introduces a new allegation that the appointment of administrators was invalid, and the defendants submit that allegation is not maintainable, for discretionary reasons I am not inclined to refuse leave to amend to include that allegation. That is a matter that can be determined at the trial without significant inconvenience. The prospects of the proposed allegation succeeding are not so obviously poor that leave to amend to include same should be refused. Explanation for delay [64] The proposed amendments to the pleading to introduce an allegation that the appointment of administrators to one of the Armour companies was part of the unlawful act I think is a matter that ought to have been able to be pleaded by the plaintiff from the outset, or at least earlier than now. However I do not perceive that the introduction of such an allegation at this stage of the proceeding is likely to derail the trial and so it would be a matter in respect of which I would otherwise be prepared to grant leave to amend. [65] The proposed amendment to the pleading to introduce a new counterfactual is an amendment of a different type. The new counterfactual is not a matter that has arisen only as a consequence of ongoing or further disclosure. It is a matter that could have been pleaded at the outset, or at least well earlier than now, and the introduction of such an allegation at this stage of the proceeding is likely to derail the trial. DGR says that the counterfactual is not a new case as such. That submission cannot be accepted. The case as presently formulated is that because of the conduct of the defendants DGR lost the value of its shares in Armour (which at the time was something like 15 cents a share) adding up to a value of approximately $3.5m, and lost the recovery of a debt owed to it by Armour (in the amount of approximately $25m). The defendants defended on the basis, inter alia, that Armour was insolvent and so DGR lost nothing. DGR disputed Armour’s insolvency in the replies. [66] The counterfactual now poses a situation where if not for the conduct of the defendants, Armour would have put a plan into effect with the consequence that the -- 16 of 22 -- 17 shares in Armour would have increased in value to $6.50 a share – such that DGR has lost the value of its shares in Armour of approximately $135m. To my mind, that is a very different case. [67] The plan upon which the proposed counterfactual is based relies upon two documents produced within the Armour companies to explain Armour’s future plans to obtain funds from investors. [68] The documents comprise: (a) what is described as a “Re-Initiation Report” produced by the company RaaS Advisory Services Pty Ltd trading as Research as a Service” (referred to as RaaS), dated 23 April 2023.2 The document runs for 36 pages and includes an express note that the report should be read in conjunction with the disclaimers and Financial Services Guide on pages 34–36. It is disclosed that one of the analysts holds shares (assumedly in Armour Energy Limited). The scope on the first page of the report identifies that: This report has been commissioned by Armour Energy to present investors with an analysis of the opportunities emerging for the company over the next 12 – 18 months. The company needs to deliver on its growth plans which should significantly improve its financial positioning, but the oil and gas business is, by definition, high risk. (b) what appears to be a Powerpoint presentation entitled “armour energy: Pathway to Sustainable Growth”, dated 17 August 2023.3 It runs for 46 slides. It contains a disclaimer and competent person’s statement that includes that the presentation is issued by Amour Energy Limited in relation to a proposed placement of fully paid ordinary shares in the company to eligible institutional, sophisticated or professional investors. The document is stated to be for informational purposes only. [69] It appears that the documents have always been in the possession of DGR as a shareholder of the Armour companies since around the time of their creation in 2023. 2 Exhibit pages 120 to 155 of PAS-4, affidavit of Smith affirmed 10 December 2024. 3 Exhibit pages 156 to 201 of PAS-4, affidavit of Smith affirmed 10 December 2024. -- 17 of 22 -- 18 [70] DGR orally submitted that the issue of gas reserves has been an issue on the pleadings since 15 August 2024 (when the replies were delivered – relevant to the disputed issue of solvency) and had the defendants made disclosure of documents relevant to that issue by say end August 2024 then DGR could have got straight on with the production of the counterfactual based on the presentation plan with the gas model being critical to the work needed to be done to plead the counterfactual. I do not accept that as an adequate explanation for the delay in pleading the proposed counterfactual. The counterfactual could have always been pleaded (or even foreshadowed) based on the documents in the possession of DGR, even if some of the detail had to await the receipt of further information, like about gas reserves. [71] Where the introduction of new matters of substance, particularly here the counterfactual, come with the distinct possibility of requiring scheduled trial dates to be vacated, the necessity for the proffering of an explanation for the delay is evident. [72] DGR’s evidence in the leave application does not adequately explain the failure to plead the proposed counterfactual at an earlier stage of the proceeding. There is hardly any express explanation provided at all. [73] It is a case like Aon at [110]–[114] and [314] where an explanation for the delay in respect of the pleading of the new counterfactual is an essential aspect of the application for leave to amend. [74] Whilst all matters need to be weighed, in my view, the failure of DGR to put on an adequate explanation as to the lateness of the proposed pleading of the new counterfactual is such that leave should not be granted for the pleading of the new counterfactual in the circumstances of this case (refer to the summary procedural history of the proceedings provided above). The proposed counterfactual – pleading issues [75] Having decided on the grounds set out above that leave will not be given to plead the counterfactual, it is strictly unnecessary to say anything about the specific pleading complaints made about the counterfactual. [76] But for the sake of completeness, the following matters should be briefly mentioned. -- 18 of 22 -- 19 [77] The plaintiff made it clear in oral submissions that it intends to restrict its counterfactual to the two documents identified at [68] above. It says the loss of opportunity should be assessed at 90%. [78] The defendants make the point that what is involved in the proposed pleading (and in the two documents) is not one direct path to a particular outcome, but a series of combinations and permutations that could lead to a particular outcome, each with their own likelihood which needs to be assessed at each step. There are references in the proposed pleading (for example at [51AL(a)(ii)]) to DGR having a number of options available to it in respect of a certain step. Each of the options will have a different likelihood associated with it and that is just one step on the path to the particular outcome against which damages are calculated. [79] The defendants say every path the plaintiff relies upon to support a claim for damages ought be identified and the likelihood of each step along the way assessed. Without that level of particularity the defendants say there is a risk that the trial will not be able to be properly managed including in respect of experts required, evidence required, and issues to be addressed. The Sanrus Pty v Monto Coal 2 Pty Ltd (No 7) [2019] QSC 241 case was highlighted as a case in which issues of that type arose because the pleading of the counterfactual in that case did not descend to the level of particularity required for a proper assessment of loss of opportunity to occur. [80] Of course, the plaintiff is not restricted to pleading a single counterfactual. It can plead as many counterfactuals as it chooses but the point is each counterfactual needs to be sufficiently pleaded such that: (a) each of the steps implicit in the counterfactual are understood and can be assessed in terms of likelihood; (b) the issues are adequately defined so as to limit the scope of disclosure; (c) the relevant lay witnesses and experts for each step can be identified and briefed to address the correct issue. [81] The proposed counterfactual as presently pleaded does not achieve that and the position is not assisted by identifying the two documents upon which the counterfactual is allegedly based. -- 19 of 22 -- 20 [82] It might be that in a particular case it is appropriate for the plaintiff to produce its pleading and evidence (lay and expert) on its counterfactual before the defendants are required to plead and put on evidence in response, but the advantages of that might be outweighed by requiring the parties to go into evidence on issues that would not otherwise be in issue if pleadings were first completed (bearing in mind though that a pleaded counterfactual is very likely to be mostly the subject of non-admissions until such time as the defendants have gathered their own expert evidence). [83] The pleading of this proposed counterfactual is very deficient (in that it does not pin DGR to a causation hypothesis which is not characterised by imprecision and ambiguity and it does not directly and unambiguously identify the material facts) and if allowed to proceed in its current form would inevitably, in my view, be causative of further interlocutory disputes, the loss of the scheduled trial dates and a lengthy extension of the trial (which would be unlikely to be heard this year). The allegations made against the defendants are serious and ought be heard and determined as quickly as possible. [84] Those are further reasons why leave is not granted for the pleading of the new counterfactual in the circumstances of this case. Narrative pleading style, other pleading issues [85] The defendants complain that the proposed amendments to the statement of claim worsen the clarity of the existing pleading (about which they have also been complaining) by adopting a narrative style of pleading. That style of pleading has been the subject of criticism in other cases; but so too has the court at times criticised other pleading styles such as the overuse of cross-referencing, the pleading of evidence, including material facts as particulars, excessive use of schedules to pleadings, and the like. Whilst the UCPR sets out some basic pleading requirements, there is scope for parties to adopt a style of pleading best suited to the case, that may change from case to case. As long as pleadings achieve their fundamental objectives – such as identifying the real issues in disputes and preventing surprise at trial – a precise style is not essential. [86] Accordingly it is not particularly persuasive if a complaint about a pleading is merely that it employs a narrative style. Particularly where, as here, the narrative style seems -- 20 of 22 -- 21 to be a consequence of DGR simply incorporating particulars and information otherwise contained in pleading schedules into the main part of the pleading, such that the effect of the pleading overall is not significantly different than it was (in respect of which most of the defendants were content to proceed). [87] The other pleading issues raised by the defendants are not of such a nature that leave to make the amendments should be refused unless specifically identified above. That is particularly so in the circumstances of this case where DGR’s evidence should be being delivered, or will be shortly delivered, such that the defendants should have a good understanding of the case required to be met. I would also be prepared to entertain other applications about pleadings (including requests for further and better particulars) on an urgent basis if that proved necessary. Other matters [88] There are some other matters that I have considered in the resolution of this application for leave to amend. Although they were not weighty matters, I record them here. [89] First, there was the security for costs applications which I heard 10 January 2025, and determined on 15 January 2025. In the circumstances in which the proceeding was then found, that application proceeded (at my direction) on the basis of an assessment of security based on the case as presently formulated. If leave to amend is granted (in whole or in part), it is readily foreshadowed that an application for top up security would be made. I have allowed for such a top up application in the security for costs orders. [90] Security having been ordered to be paid by mid March, if it is not paid, the proceeding will be stayed, likely interfering with the existing trial dates. If the existing trial dates were inevitably going to be lost regardless of the outcome of the application for leave to amend, that would have some relevance. But the likelihood of such an outcome is not known and therefore is given little weight. [91] Second, I note that granting leave to further amend DGR’s statement of claim, unless the court orders otherwise, would lead to a liability for DGR to pay certain costs to the defendants pursuant to rule 386 UCPR. I have considered whether I ought make any leave to amend conditional upon such potential costs liability being secured in -- 21 of 22 -- 22 some fashion, but given the decision I have made in respect of the defendants’ security for costs application, I do not consider that appropriate at the present time. Outcome [92] Leave is refused for DGR to amend the existing pleading to: (a) amend the tortious conspiracy claims, including in respect of the joinder of the Perpetual defendants to those claims, save that DGR is at liberty to abandon any of the currently pleaded claims as it sees fit and is at liberty to expand the alleged unlawful purpose in the currently pleaded claims to include the appointment of administrators to Armour as was proposed to be pleaded; (b) include the proposed new counterfactual. [93] Leave is granted for DGR to otherwise amend the existing pleading in the way proposed. There should be some scope in the terms of the order to be made for DGR to make limited further amendments to address pleading complaints by the defendants, including where DGR conceded during the hearing on 16 December 2024 that some further amendments are going to need to be made. [94] The parties are asked to draft an appropriate form of orders dealing with the amendments to both the claim and statement of claim. -- 22 of 22 --