Case: Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009 
Outcome: cited
The plaintiff must, however, show that it has an arguable case against the proposed defendant to the standard or being able to resist an application for summary judgment by the proposed respondent had that proposed party been sued in separate proceedings: Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009 at [5] . 7 I have read the affidavits of the several investors together with the affidavits of Mr Jones, to which I have referred. The evidence which establishes at least an arguable case includes relevantly: (a) The existence, at all material times, of the relevant companies, namely: (i) the proposed eighth defendant; and (ii) Firepower Holdings Group Limited. (b) The issue of shares in Firepower to Green Triton on 2 June 2005. (c) The absence at all material times of a prospectus, profile statement or offer information statement lodged with the plaintiff in relation to any offer of shares in Firepower: s 727(1). (d) The fact that the shares that were the subject of the alleged contravening offers made by the eighth defendant were among those issued to it on 2 June 2005. (e) The purpose of the issue of the shares to Green Triton was the sale or transfer of the shares: s 707(3), which is to be inferred on the basis of s 707(4) from the sales of shares by Green Triton that are described in the affidavits of Geoffrey Allan, Carol Ashworth, Darryl Edmondson and Nicholas Furlan, and from the transcript of Timothy Francis Johnston on 4 March 2008. In the transcript, Mr Johnston is recorded to say that, in effect, the eighth defendant was (among other things) to bring funds into Firepower through the sale of shares. (f) The alleged contravening offers were made by the first defendant, Axis International Management Pty Ltd as agent on behalf of the eighth defendant. (g) The fact that those offers were made on behalf of the eighth defendant, is referred to in the transcript of the examination of Timothy Francis Johnston on 5 March 2008. In the transcript, Mr Johnston is recorded to say that, in effect, the sixth defendant, Quentin Ward, in his position with the first defendant, had authority to make the offers shown in the share register on behalf of the eighth defendant. (h) The absence of the exemptions set out in ss 708 and 708A: see s 707(3). The exemptions that are potentially relevant for the purpose of this application are those set out in ss 708(8) (sophisticated investors); 708(10) (offer through financial advisers); 708(11) (professional investors - to be read together with the definition of that term in section 9); 708(12) (offers to person associated with Firepower) and 708A(5), (11) and (12) (certain offers of quoted securities). The Investor Affidavits establish, to the requisite degree of proof, the absence of the exemptions found in s 708. Section 708A does not apply because Firepower has never been listed. 8 In the current proceedings Green Triton should be joined as the eighth defendant, in my opinion, as it is a party necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon and, furthermore, ought to have been joined and indeed would have been joined save for the fact that it was thought to have been deregistered at the time proceedings commenced. I will accordingly make an order in terms of para 1 of the motion.