Marlu Transport Solutions Pty Ltd v Bishdun Pty Ltd (No 2) - Cross-Claim Leave Application Dismissed

Original Word Document (91.2 KB) Federal Court of Australia

Marlu Transport Solutions Pty Ltd v Bishdun Pty Ltd (No 2) [2026] FCA 420

| File number: | WAD 18 of 2025 |
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| Judgment of: | JACKSON J |
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| Date of judgment: | 9 April 2026 |
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| Date of publication of reasons: | 10 April 2026 |
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| Catchwords: | PRACTICE AND PROCEDURE - application for leave to file cross-claim - proposed cross-claim would open significant field of forensic dispute - trial listed in one month's time - no adjournment of trial sought or appropriate - insufficient time to ensure a fair and orderly trial - duplication and inefficiency from any new proceeding not excessive – application dismissed |
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| Legislation: | Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 18, 21

Corporations Act 2001 (Cth) s 500(2)

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) r 15.04 |
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| Cases cited: | Aspect Safety Group Pty Limited v Swift [2022] FCA 904

Central Coast Council v Norcross Pictorial Calendars Pty Ltd [2021] NSWCA 75

Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 |
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| Division: | General Division |
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| Registry: | Western Australia |
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| National Practice Area: | Commercial and Corporations |
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| Sub-area: | Regulator and Consumer Protection |
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| Number of paragraphs: | 47 |
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| Date of hearing: | 9 April 2026 |
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| Counsel for the Applicant: | The applicant did not appear |
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| Counsel for the Respondents: | Mr A Wyvill SC |
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| Solicitor for the Respondents: | Cozens Johansen Lawyers |
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| Counsel for the Cross-Claimants: | Mr A Wyvill SC |
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| Solicitor for the Cross-Claimants: | Cozens Johansen Lawyers |
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| Counsel for the Cross-Respondents: | Ms PA Honey |
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| Solicitor for the Cross-Respondents: | Murfett Legal |
ORDERS

| | | WAD 18 of 2025 |
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| BETWEEN: | MARLU TRANSPORT SOLUTIONS PTY LTD (ACN 668 701 488)

Applicant | |
| AND: | BISHDUN PTY LTD (ACN 155 899 040)

First Respondent

MALCOLM DONALD BISHOP

Second Respondent

JOCELYN DUNNING (and others named in the Schedule)

Third Respondent | |
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| AND BETWEEN: | BISHDUN PTY LTD (ACN 155 899 040) (and others named in the Schedule)

First Cross-Claimant | |
| AND: | MARLU TRANSPORT SOLUTIONS PTY LTD (ACN 668 701 488) (and others named in the Schedule)

First Cross-Respondent | |

| order made by: | JACKSON J |
| DATE OF ORDER: | 9 April 2026 |
THE COURT ORDERS THAT:

1. The interlocutory application filed by the fourth cross-respondent on 26 March 2026 is dismissed.

2. The fourth cross-respondent must pay the costs of the first to third cross-claimants in respect of the interlocutory application to be taxed if not agreed.

3. Paragraphs 12 to 16 and 18 to 24 of the orders made on 2 September 2025 are vacated.

Trial bundle

1. By 27 March 2026, the cross-claimants must deliver to the second to sixth cross-respondents a draft index of the documents which the cross-claimants propose to include in the trial bundle, including all affidavits proposed to be read and documents proposed to be tendered.

2. By 8 April 2026, the second to sixth cross-respondents must deliver to the cross-claimants an amended draft index identifying any documents they propose to include in the trial bundle, including all affidavits proposed to be read and documents proposed to be tendered.

3. By 14 April 2026, the parties must confer and agree on the contents of the trial bundle.

4. By 4.00 pm AWST on 17 April 2026, the cross-claimants must file and serve the agreed trial bundle index.

5. By 4.00 pm AWST on 20 April 2026, the cross-claimants must file or otherwise provide by way of file sharing link to the Court's registry, an electronic copy of the agreed trial bundle which must:

(a) be accompanied by a hyperlinked index containing links to each document contained in the trial bundle; and

(b) comprise a single folder that contains the individual PDF documents, which must be:

(i) in native PDF format or, where that is impracticable, text searchable PDF format;

(ii) paginated, with the page numbering starting at the first page of the first document and running consecutively until the last page of the last document, and displayed in large, bold text in the header or footer of each page; and

(iii) appropriately numbered, named and organised in accordance with the index.

Objections to evidence

1. By 17 April 2026, the parties must exchange in Microsoft Word format a schedule of objections to evidence in the form of Annexure A, identifying any document contained in the trial bundle or part thereof (including any passages in affidavits) which is objected to and stating the basis of each objection.

2. By 22 April 2026, the parties must serve on each other their responses to the other party's objections, in the form of the schedules previously exchanged, stating whether or not the objection is conceded and for those objections that are not conceded providing a brief statement as to why not.

3. By 24 April 2026, the parties must confer by counsel and attempt to resolve the remaining objections notified in accordance with paragraphs 9 and 10 above.

4. By 30 April 2026, the parties must file a consolidated schedule, in Microsoft Word format, of all agreed and unresolved objections, which schedule must, to the extent possible, list any unresolved objections in categories, stating a lead objection in each category the resolution of which is likely to lead to the resolution of all objections in that category.

5. Save with leave of the Court, no party may object to any document in the trial bundle or part thereof, other than on the grounds set out in a notice of objection filed and served in accordance with these orders.

Outline of opening submissions

1. By 4.00 pm AWST on 20 April 2026, the cross-claimants must file and serve an outline of opening submissions of no more than 10 pages in length.

2. By 4.00 pm AWST on 28 April 2026, the second to sixth cross-respondents must file and serve an outline of opening submissions of no more than 10 pages in length.

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

Annexure A

SCHEDULE OF OBJECTIONS TO EVIDENCE

| No | Agreed category (if any) | Evidence objected to | Basis of objection | Response | Outcome |
| [Document] | | | | | |
| 1. | | | | | |
| 2. | | | | | |
| [Document] | | | | | |
| 3. | | | | | |
| 4. | | | | | |
REASONS FOR JUDGMENT

JACKSON J:

1 The applicant, Marlu Transport Solutions Pty Ltd (MTS) commenced this proceeding as a claim of misleading or deceptive conduct and unconscionable conduct against five respondents. The alleged misleading conduct concerned a transport business which MTS bought from the first respondent, Bishdun Pty Ltd.

2 The purchase of the transport business was partly funded by vendor finance, the details of which need not be set out here. It is common ground that the terms of repayment of the vendor finance have not been met, and this led four of the respondents to commence a cross-claim against MTS and other companies and individuals connected with it who effectively guaranteed repayment of the vendor finance. The application and the cross-claim have been listed for a two-week trial commencing on 11 May 2026.

3 MTS entered voluntary administration on 9 February 2026 and was placed into liquidation on 17 March 2026. The cross-claim against it is therefore stayed by force of s 500(2) of the Corporations Act 2001 (Cth). Also, as far as the Court is aware, the liquidators have no intention of causing MTS to pursue its claim of misleading or deceptive conduct at the trial or at any other time. MTS is not taking an active part in the proceeding.

4 Nevertheless, the cross-claim against the other companies and individuals (Marlu Parties) remains on foot and is proceeding to trial in May. One of those companies is the fourth cross-respondent, Marlu Resources Group Pty Ltd (MRG). On 26 March 2026, MRG filed an interlocutory application seeking leave to pursue its own cross-claim against Bishdun, Bishop Contracting Pty Ltd as trustee for the MD Bishop Trust, and two individuals who were directors and each a 50% shareholder of Bishdun and Bishop Contracting at material times, Malcolm Bishop and Jocelyn Dunning. I heard that application on 9 April 2026 and at the end of the hearing made orders dismissing it. These are my reasons.

The current claim and cross-claim

5 MRG sought leave to sue Bishdun, Bishop Contracting and Mr Bishop and Ms Dunning for damages, interest and costs. A proposed statement of cross-claim was annexed to the interlocutory application. The claim it articulates is brief and simple.

6 In part, the proposed statement of cross-claim was able to achieve that brevity by relying (relevantly) on the amended statement of claim filed by MTS on 24 March 2025 and on the amended defence to the cross-claim filed by the Marlu Parties on 17 March 2026. It is only necessary to describe those pleadings in broad overview.

7 As already mentioned, the amended statement of claim pleads a case where it is said that in breach of s 18 and s 21 of the Australian Consumer Law, Bishdun, Mr Bishop, Ms Dunning and another individual engaged in misleading or deceptive conduct and unconscionable conduct in connection with the sale of a transport business based in the Northern Territory known as Nighthawk Transport. It is alleged that the respondents represented to MTS and to a valuer retained by MTS that the plant and equipment that was being purchased was in fair and reasonable condition, free from any major defect that would have impacted on its operation or value, and that any repairs and maintenance necessary would be completed prior to completion of the sale.

8 It is further alleged that MTS executed an agreement for the purchase of Nighthawk Transport and an instrument to finance the purchase in reliance upon those representations. The representations are alleged to have been misleading or deceptive, in that numerous assets purchased were in very poor condition, some beyond repair, and that they had not been serviced and repaired. Essentially the same conduct is said to have constituted unconscionable conduct.

9 There is also a claim for breach of the asset sale contract which need not be described.

10 The cross-claim by the respondents (Bishdun Parties) essentially claims for breach of repayment obligations, and calls on guarantees and indemnities said to have been given under the finance documents already mentioned. As mentioned, MRG is a respondent to that cross-claim as a signatory of some of those documents. It and the other cross respondents (excluding now MTS) plead in their defence that but for the misleading or deceptive and unconscionable conduct pleaded in MTS's amended statement of claim, MTS would not have entered into the agreement to purchase Nighthawk Transport and the various other respondents to the cross-claim would not have entered into the financing documents. They plead this as a defence to the cross-claim and also say that they are entitled to a set off of damages equal to any amount for which they are nevertheless liable to the Bishdun Parties.

The proposed cross-claim and the evidence to be adduced in support of it

11 In that context, MRG came to propose its new cross-claim as follows. It alleged that it is part of the same group of companies as MTS, as controlled by their directors Alex McPhee and Saturn Turnbull. After completion of the agreement to purchase Nighthawk Transport, MTS was operating at a loss and there was insufficient revenue to cover operational expenses. By reason of that, it is pleaded, Mr McPhee and Ms Turnbull caused MRG to lend $2,049,800.81 to MTS to cover operational expenses so that MTS could continue to trade. This occurred over the period 10 July 2024 to 9 February 2026. MRG pleads that but for the Bishdun Parties' misleading or deceptive and unconscionable conduct, MTS would not have entered into the agreement to purchase Nighthawk Transport and MRG would not have lent the funds to MTS for the pleaded purpose.

12 The voluntary administration on 9 February 2026 and the liquidation on 17 March 2026 of MTS are pleaded as events giving rise to loss or damage, because they mean that MRG will be unable to recover the funds that it has lent. Hence the claim for damages. There is a report from the voluntary administrators dated 10 March 2026 which estimates that unsecured creditors of MTS, of which MRG is one, will not receive any return on funds. So it can be inferred that the amount of the damages claimed depends on the amount of funds advanced by MTS between 10 July 2024 and 9 February 2026.

13 MRG thus submitted that the proposed cross-claim was narrow in scope and arose out of the same factual matters as the existing proceeding. So, even though MRG was well out of time to file the new cross-claim without leave (see r 15.04 of the Federal Court Rules 2011 (Cth)), that claim could be added to the proceeding for determination at the trial in May. MRG did not seek the vacation of the trial dates. But for reasons described below, the Bishdun Parties opposed leave to advance the new cross-claim.

Principles

14 There was no dispute about the matters that should generally guide the exercise of the discretion as to whether to grant leave to make a cross-claim out of time. Wigney J conveniently summarised them in Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 at [87] as including (citations removed):

whether the subject matter of the claim fell within the Court's jurisdiction; the extent of the delay; whether an acceptable explanation has been provided for the delay; any prejudice to the other party or parties occasioned by the delay; the merits or strength of the proposed cross-claim; the degree of connection between the proposed cross-claim and the subject matter of the principal proceedings; and the desirability that all disputed matters between the parties connected with the subject matter of the proceedings be dealt with in the main trial.

15 With some adaptation to fit the circumstances of this case, I considered the interlocutory application in light of these matters. Since the merits of the proposed cross-claim assumed some prominence in the parties' arguments, it is also helpful to note the observation of Cheeseman J in Aspect Safety Group Pty Limited v Swift [2022] FCA 904 at [36] that the assessment of the merits on an application such as this 'is necessarily approached in a summary way'.

Matters that were not the subject of significant controversy.

16 It is now possible to describe the matters that I weighed in the exercise of the discretion in the circumstances of this case and the parties' arguments about them. There were a few matters that were not the subject of much controversy, if any. There was no issue that the subject matter of the proposed cross-claim is within the Court's jurisdiction.

17 As for the delay and the explanation for it, while there was some complaint about it in an affidavit of Nicholas Johansen affirmed on 31 March 2026 in opposition to leave, senior counsel for the Bishdun Parties did not press the point in his written or oral submissions. With respect, that was sensible: while it may have been possible to quibble about whether MRG could have pursued losses earlier than the winding up of MTS, that was an obvious point at which the loss crystallised and any debate about timing in that context would have been profitless. I was satisfied that, while the delay was significant (as MRG properly conceded), it had been adequately explained.

18 As for the connection between the proposed cross-claim and the existing claim and cross-claim, that is indeed close. All three rely on the alleged misleading or deceptive and unconscionable conduct of the respondents (save for the fifth respondent and fourth cross-claimant, Bishop Contracting, which was joined because it was a party to the financing documents). But, as senior counsel for the Bishdun Parties submitted, the overlap was not complete, because in particular the case as to causation and quantum of damages to be claimed by MRG was new. It will be necessary to return to this below.

19 The parties were similarly not at one in respect of the desirability of all disputed matters between them being dealt with in at the same trial. While senior counsel for the Bishdun Parties accepted that this would be desirable, all things being equal, he submitted that the relatively short period of time until trial meant that it was not the most efficient course here. Senior counsel also submitted that the prejudice to MRG if it were required to advance its claim in a separate proceeding would not be great. I will also return to this below.

20 The main area of dispute about leave to make the cross-claim, however, concerned what I considered to be the related questions of the merits of the cross-claim, whether the Bishdun Parties would be prejudiced in their defence of it, and whether it would prejudice an efficient and orderly trial. The matters were framed that way in a context where all concerned accepted that the trial in May was not to be vacated.

21 There were also submissions about whether any leave to proceed with the cross-claim should be conditional upon an order for security for costs, but the view I reached at the end of the hearing means it is not necessary to address those.

Merits of the cross-claim, prejudice to the Bishdun Parties and prejudice to the trial

22 It is convenient to develop these points by reference to the matters put on behalf of the Bishdun Parties as to why, they said, MRG had not discharged its onus of persuading the Court that it would advance the overarching purpose of the civil practice and procedure provisions to grant leave to pursue the new cross-claim: see s 37M of the Federal Court of Australia Act 1976 (Cth).

23 These matters centred around characteristics of the proposed cross-claim. While counsel for the Marlu Parties also addressed criticisms of her clients' defence to the existing cross-claim, senior counsel for the Bishdun Parties did not pursue those criticisms in his oral or written submissions. In any event, I proceeded on the basis that the merits of the defence to the existing cross-claim are to be determined at trial. I did not take those criticisms into account in determining the interlocutory application.

MRG's solvency

24 The first concern raised by the Bishdun Parties about the proposed cross-claim concerned the solvency of MRG. The Bishdun Parties relied on evidence in Mr Johansen's affidavit to the effect that MRG has a debt to the Australian Taxation Office in the amount of $2,273,335.76.

25 Counsel for MRG accepted that this tax debt was owing, and pointed out that this has been disclosed and addressed in evidence on which the Marlu Parties will seek to rely at trial. As counsel put it, the acquisition of Nighthawk Transport meant that 'very difficult financial decisions needed to be made by Ms Turnbull and Mr McPhee'. This was all part of the need to try to keep MTS operating.

26 Therefore, while counsel did not concede that MRG was insolvent, she did not point to evidence to the contrary. Rather, her response to this concern was that it was not apparent how the insolvency of MRG, if any, gave the Bishdun Parties a defence to the proposed cross-claim.

27 I accepted MRG's submission in this regard. Senior counsel for the Bishdun Parties did not articulate any such defence. He submitted that insolvency went to the 'propriety' of the application, suggesting that if an administrator or liquidator was in place, the application would not have been made. He appeared to suggest that it was somehow unlawful or improper for any funds of MRG to be spent on legal fees rather than on repaying the ATO or other creditors, and appeared to allude to the obligations of directors of companies under the Corporations Act not to trade while insolvent. But none of this made it clear how, if his factual premises were made out, that would give rise to a defence to the proposed cross-claim.

28 Senior counsel also referred to something he called 'the principle of illegality'. His submissions seemed to encompass the historical trading of MRG at a time when it was allegedly insolvent, which was said to disentitle the company from relief under the Australian Consumer Law. But at no point, with respect, did he explain how trading while insolvent would sever any causal connection that MRG otherwise established between the alleged misleading conduct of the Bishdun Parties and the losses constituted by the irrecoverable loans advanced to MTS. While he submitted, correctly, that a simple 'but for' factual test is not definitive as to causation under the Australian Consumer Law, he did not cite any case to support the proposition that conduct that might otherwise meet the criteria for causation would fall short because it can also be characterised, say, as having been engaged in in breach of the obligations of directors to prevent insolvent trading.

29 The absence of any articulation of how these points would give rise to a defence to the proposed cross-claim meant that I put no weight on the alleged insolvency of MRG, now or at any previous time, as a factor affecting the merits.

30 Similarly, I did not put weight on a submission that success in the proposed cross-claim would enable MRG to recover funds advanced to MTS in a manner that would 'bypass the liquidation'. Again, how that would give the Bishdun Parties a defence to the proposed cross-claim was not explained.

Reflective loss

31 Nor did I put any weight on submissions made about the so called principle of 'reflective loss'. As articulated by Bathurst CJ in Central Coast Council v Norcross Pictorial Calendars Pty Ltd [2021] NSWCA 75 at [103]-[117], at its core this is the principle that if a company has suffered loss as a result of a wrong, the company is the proper plaintiff, and not a shareholder that has suffered a diminution of the value of its shareholding as a result of the loss experienced by the company. As Bathurst CJ's discussion reveals, in England this has been the subject of disagreement at the level of the Supreme Court in relatively recent times. It may also extend to losses suffered by a creditor of the company, where both the creditor and the company have claims against the same defendant in respect of the same loss. However, the principle may not apply where the loss suffered by the company and the loss suffered by the shareholder or creditor are separate and distinct.

32 The main response of the Marlu Parties to the concerns raised about reflective loss was to say that the loss that MRG would claim in the proposed cross-claim was not the same as the loss that MTS had suffered.

33 Whatever might turn out to be the true position, I considered that these controversies were all matters for legal argument that would depend on the findings of fact made at trial. It was not apparent to me how they might impact on the scope of any forensic dispute, and so impact on the ability to conduct an orderly trial in the allotted two weeks in May of this year. I therefore did not place weight on issues of reflective loss as a basis not to grant leave to proceed with the proposed cross-claim.

The causal relationship between alleged misleading conduct and the advances to MTS

34 I did, however, put weight on the next concern that senior counsel for the Bishdun Parties raised, which pertained to the evidence that MRG proposed to rely on to establish that it had advanced $2,049,800.81 to MTS as claimed and, crucially, why those funds had been advanced. To understand why I placed weight on this concern, two pieces of evidence (or prospective evidence) need to be described.

35 The first is the evidence on which MRG proposed to rely to make good its plea that but for the alleged misleading or deceptive and unconscionable conduct, MRG would not have advanced the funds to MTS for the purpose of covering operational expenses so that MTS could continue to trade. It was submitted that this evidence would be found in an affidavit of Ms Turnbull affirmed on 1 December 2025 as well as an affidavit of MTS's Chief Financial Officer, Jacques-Benoit Jean-Louis sworn on 5 December 2025. It was only necessary to have regard to an excerpt from the first of these, which was not read into evidence, but was taken note of for the purpose of understanding the material on which MRG proposed to rely if leave to advance the new cross-claim were given.

36 Ms Turnbull's affidavit contains a statement that the primary focus of her and others had been on 'keeping [MTS] afloat'. It also says:

93.    After the acquisition of Marlu Transport, there were essential ongoing expenses required to keep Marlu Transport operating, such as wages, fuel, and vehicle parts, maintenance and services. Marlu Transport was not generating sufficient revenue to cover all those expenses.

94.    To keep Marlu Transport operating, MRG loaned approximately $2 million to Marlu Transport.

37 The second piece of evidence is annexure SMT-33 to the affidavit of Ms Turnbull affirmed on 20 March 2026. This was read into evidence for the limited purpose of determining the interlocutory application. The annexure is a report which appears to have been extracted from accounting records. It is said to document the advances of funds by MRG to MTS (and credits accorded to MTS for repayments or other transactions). There are close to 500 entries in this report for individual payments or receipts during the relevant period of 10 July 2024 to 9 February 2026. For each entry, there is a date, a description, a credit or debit amount, and a running balance for the account.

38 For example, on 12 July 2024, MRG appears to be recorded as having advanced $200,000 to MTS, where the description is simply 'Marlu Transport Solutions'. There are numerous payments described by reference to the names of airlines such as Qantas and Virgin. The Virgin items have a further description 'DRW Flights', the Qantas items have no further description. There are car hire and other apparent travel expenses. There are payments to American Express which have no further description. There are several payments for legal fees to the solicitors that represent the Marlu Parties in this proceeding. There are payments attributed to something called Capricorn Society, with no apparent explanation in the evidence as to what that is. For other items, the connection with MTS's business is perhaps clearer, for example where the description is 'Marlu Transport Solutions – Trucks repairs'.

39 Ms Turnbull's evidence about these payments in her affidavit of 20 March 2026 was that:

to keep [MTS] operating, in the period between 10 July 2024 and 9 February 2026, Mr McPhee and I caused MRG to loan [MTS] funds. Money was put in as required and as a last resort, usually to cover wages or critical suppliers who were demanding to be paid. Those funds totalled $2,049,800.81.

40 Hence it appears from this and the other affidavit evidence described above that the proposed cross-claim depends on findings about the reason why funds were advanced. It follows that the Bishdun Parties, in resisting that case, would be entitled to test the purpose of each payment and further, that they are likely to be entitled to discovery in relation to the purpose of each payment.

41 I was concerned that this was likely to open up thousands of documents for discovery. The Marlu Parties relied on an affidavit of their solicitor, Fabienne Sharbanee, which says on the basis of an estimate from Ms Turnbull that approximately 50 documents would need to be discovered in connection with the proposed cross-claim. But it was difficult to see how this could be so, in view of the number of transactions into which the Bishdun Parties were entitled to inquire, and the likelihood of documents existing that would be relevant to those inquiries. For example, if payments to Qantas were made so that personnel could be transported to a regional job site, one would expect to see not only documentation of the travel but documentation of the job, which may or may not establish that the transport cost was necessary to keep MTS operating.

42 It appeared to me that discovery of this kind was likely to be extensive. And, as senior counsel for the Bishdun Parties pointed out, after it was given, and they had the opportunity to review it, the Court would expect the parties to confer with a view to narrowing the transactions the purpose of which was in dispute and presenting a schedule to the Court indicating the results of that conferral. All this would be required in the lead up to the presently listed two-week trial, which is a little over four weeks away.

43 I put significant weight on this concern, because it seemed to me that there would not be enough time to ensure a fair and orderly trial of the proposed cross-claim. To be clear, it was the scope of forensic dispute likely to be engendered by the proposed cross-claim that concerned me, not senior counsel's criticisms of the way that the proposed cross-claim was to be pleaded. The nature of the proposed cross-claim was clear enough. But I considered that if the proposed cross-claim were to be instituted this close to trial, the Bishdun Parties would be prejudiced in their defence to it, and the Court would find it difficult to oversee a fair and efficient trial. Since all parties were rightly averse to the idea of an adjournment of the trial, this was a significant concern.

Prejudice to MRG if the proposed cross-claim did not proceed

44 I also put some weight on another matter, being the consequences for MRG if it were not permitted to ventilate the proposed cross-claim at next month's trial. For on the existing cross-claim by the Bishdun Parties, and the defence of the Marlu Parties to it, it appears likely that the issue (broadly put) of whether the former misled the latter in a manner that caused them to enter into the purchase of Nighthawk Transport will be determined. And while it is not appropriate to speak definitively about matters such as issue estoppel before the relevant findings have been made, it appeared likely to me that if the issues of misleading conduct are determined in favour of the Marlu Parties, which include MRG, MRG will be able to take the benefit of those findings to pursue the claim it has attempted to add as a cross-claim in this proceeding. What will not have been determined is a distinct case as to causation and loss.

45 To that extent I accepted the submission by the Bishdun Parties, mentioned above, that the overlap between the present proceeding and the proposed cross-claim was not complete. It therefore seemed to me that, as desirable as it would no doubt be to hear all the issues in the one trial, the duplication and inefficiency caused by hearing the proposed cross-claim in a separate proceeding would not be excessive.

Conclusion

46 In summary, then, I dismissed the interlocutory application for leave to proceed with the proposed cross-claim because, as has been explained, I was concerned that it would not be possible to ensure a fair and orderly trial in the time available before the trial listed next month. I also put weight on the likelihood that, if the outcome of that trial is favourable to the Marlu Parties, MRG will be able to take the benefit of that in any new proceeding without undue duplication or inefficiency.

47 Hence the orders made on 10 April 2026. At the same hearing, varied case management orders were made.

| I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. |
Associate:

Dated: 10 April 2026

SCHEDULE OF PARTIES

| | WAD 18 of 2025 |
| Respondents | |
| Fourth Respondent: | LLOYD DANIELS |
| Fifth Respondent: | BISHOP CONTRACTING PTY LTD (ACN 129 965 797) AS TRUSTEE FOR THE MD BISHOP TRUST |
| Cross-Claimants | |
| Second Cross-Claimant: | MALCOLM DONALD BISHOP |
| Third Cross-Claimant: | JOCELYN DUNNING |
| Fourth Cross-Claimant: | BISHOP CONTRACTING PTY LTD (ACN 129 965 797) AS TRUSTEE FOR THE MD BISHOP TRUST |
| Cross-Respondents | |
| Second Cross-Respondent: | OZ BASE NOMINEES PTY LTD (ACN 646 665 974) AS TRUSTEE FOR THE MONARO HOLDINGS TRUST FUND (ABN 68 823 241 465) |
| Third Cross-Respondent: | MARLU HEALTH PTY LTD (ACN 638 431 508) |
| Fourth Cross-Respondent: | MARLU RESOURCES GROUP PTY LTD (ACN 636 910 033) |
| Fifth Cross-Respondent: | ALEX BRUCE MCPHEE |
| Sixth Cross-Respondent: | SATURN MANU TURNBULL |
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