Australian Agrivision Pty Ltd v Wolstenholme (Leave to Amend)

This Federal Court decision came out of a commercial loan and guarantee dispute. Australian Agrivision Pty Ltd sued as the assignee of rights said to have originally belonged to Capital Bridging Finance Pty Ltd. Agrivision alleged that Capital lent more than $5 million to B&T Investment Group (ACT) Pty Ltd under a written loan agreement dated 14 June 2024, and that two individuals, Tara Louise Wolstenholme and Alexander James Anderson, guaranteed B&T's obligations under guarantees dated the same day.

Agrivision said B&T defaulted, some money was recovered by receivers and managers from B&T's property, and the remaining balance was recoverable from the guarantors. It also alleged that on or about 8 November 2024 Capital assigned the guarantee claims to Agrivision. B&T was by then in liquidation.

The judgment, however, was not about whether Agrivision would ultimately succeed on the debt or guarantee claim. The issue before Stewart J was procedural. Mr Anderson wanted leave to amend his response and to add a cross-claim late in the proceeding. That proposed cross-claim would have expanded the case beyond the guarantee enforcement dispute and brought in additional parties.

The Court described Mr Anderson's existing concise statement in response as hard to understand. Reading it as best it could, the Court took him to be making several broad points. He did not appear to dispute the existence of the loan agreement between Capital and B&T. He also did not appear to dispute that he executed the guarantee. Instead, his position seemed to be that Capital and Agrivision had not followed due process in invoking default, had failed to provide a valid notice, had not allowed B&T to correct the alleged default, had failed to comply with the original terms of the loan agreement, had made unlawful material variations, and had themselves disrupted B&T's financing processes and contributed to the events of default.

Mr Anderson then sought leave to file an amended concise statement in response and a notice of cross-claim. The proposed cross-claim was directed against three proposed cross-respondents: Agrivision, Capital and Damien Simonfi. Importantly, the proposed cross-claim was conditional on Mr Anderson's defence to Agrivision's guarantee claim failing. In other words, it was not simply another way of denying liability on the guarantee. It was a separate set of claims he wanted to pursue if he lost on the main claim.

The proposed cross-claim alleged three things: first, that Capital breached the loan agreement; second, that Capital engaged in misleading or deceptive conduct contrary to the Australian Consumer Law or the Australian Securities and Investments Commission Act 2001 (Cth); and third, that Capital engaged in unconscionable conduct contrary to the ACL or the ASIC Act.

The judgment gives a useful summary of the Federal Court Rules that apply to cross-claims. Rule 15.04 of the Federal Court Rules 2011 provides that a notice of cross-claim must be filed at the same time as the filing of, relevantly, a respondent's concise statement in response. If that does not happen, r 15.05(1) says the respondent must apply to the Court for leave to file the notice of cross-claim.

Rule 15.05(2) then sets out what must accompany that application. The application must be accompanied by an affidavit stating, briefly but specifically, the nature of the cross-claim and its relationship to the subject matter of the proceeding, and why the notice of cross-claim was not filed in accordance with r 15.04. It must also be accompanied by a draft notice of cross-claim that complies with r 15.02.

The Court also referred to the broader principles that apply when a party seeks leave to file a cross-claim out of time. Those principles are relevantly the same as for amendments generally. The Court identified the following considerations: the extent of the delay, whether there is an acceptable explanation for the delay, any prejudice to the other party or parties caused 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 proceeding, and the desirability of dealing with all connected disputes in a single hearing.

For business readers, this part of the judgment is especially important. It shows that a late cross-claim is not just a matter of asking for permission in general terms. The Court expects a party to comply with the specific procedural requirements and to provide a coherent explanation and a proper draft pleading.

Stewart J refused leave to file the proposed amended concise statement in response because it was defective and difficult to follow. The judgment gives a concrete example. Paragraph 1 of Agrivision's amended concise statement pleaded that Agrivision was a corporation within the meaning of the Corporations Act and had capacity to sue and be sued. Mr Anderson's proposed response to that paragraph said he admitted paragraph 1 insofar as it pleaded the existence of the loan agreement and guarantee, and did not plead to the balance because it contained no allegation against him. The problem was that paragraph 1 did not plead the existence of the loan agreement or guarantee at all. The Court said the proposed response was meaningless and that the rest of the proposed amended response suffered from similar and other defects.

The proposed cross-claim faced a series of separate problems.

First, despite the express requirement in r 15.05(2)(a)(ii), there was no explanation why the cross-claim had not been filed at the correct time or why it was only being brought forward then.

Secondly, the delay was considerable. Capital commenced the proceeding on 1 October 2024. Agrivision was substituted as applicant on 20 December 2024. Mr Anderson filed his concise statement in response on 26 February 2025. Agrivision filed a reply on 28 March 2025. The matter was listed for final hearing on 18 July 2025 for 9 and 10 February 2026, with detailed programming orders. Mr Anderson's solicitor came on the record on 23 September 2025. The interlocutory application was filed on 10 November 2025. The Court therefore treated the delay as more than eight months from the filing of the response, and nearly four months after the matter had already been listed for final hearing.

Thirdly, the Court found there would be considerable prejudice to Agrivision if leave were granted. The main prejudice was delay. It was common ground that the February 2026 hearing would have to be vacated. Two new parties would be added, and that would likely lead to substantial further pleading steps, evidence and interlocutory disputes before the matter could be ready for trial again.

Fourthly, the Court was not satisfied that the proposed cross-claims had merit. No evidence had been adduced in support of them, so at that stage they were mere assertions. Even assuming the underlying facts could be proved, the Court said it was not clear that the claims had merit. The Court accepted Agrivision's written submissions identifying problems with the claims as pleaded. Late changes made by Mr Anderson did not materially assist.

Fifthly, the claims were confusingly pleaded and did not meet pleading requirements. The Court considered that allowing the proposed statement of cross-claim to be filed would likely generate further interlocutory disputation about pleadings.

Finally, although the principal claim and the proposed cross-claims broadly arose out of the same events, the proposed cross-claim was conditional on the principal claim succeeding. The Court noted that the cross-claim was not itself a defence to the claim and did not overlap entirely with the issues in the principal proceeding.

The Court dismissed Mr Anderson's further amended interlocutory application with costs. That meant he was not given leave to file the proposed amended concise statement in response and was not given leave to file the proposed cross-claim in the form put before the Court.

The reasons are important because they show the decision was procedural and case-management focused. The Court did not decide that the proposed ACL, ASIC Act or unconscionability allegations were false. It decided that those allegations, as then framed and brought at that time, should not be added to this proceeding.

The judgment also indicates that refusing leave would not necessarily shut the door on all of the proposed claims, because they might still be brought separately in another proceeding. However, the available text is truncated when discussing possible Anshun estoppel considerations, so that point should be read with caution.

For lenders, assignees and debt purchasers, the case shows that the Court will protect hearing dates and will not lightly permit a respondent to expand the dispute late in the day by adding new parties and new statutory claims. If your business is enforcing a guarantee, that can be significant because it reduces the risk that a listed hearing will be derailed by a poorly prepared late cross-claim.

For borrowers and guarantors, the lesson is different but equally practical. If you believe the lender, broker, assignee or another participant in the transaction misled you, acted unconscionably, breached the contract, or caused the default circumstances you are now being sued over, you need to identify that position early. Courts expect more than broad assertions of unfairness. They expect a clear pleading that identifies the legal basis of the claim, the facts relied on, the connection to the proceeding, and the relief sought.

This is especially important in finance disputes. Businesses often focus first on resisting the debt claim and only later realise they may also want affirmative relief. By then, the case timetable may already be fixed, evidence may have been filed, and the Court may be unwilling to reopen the structure of the proceeding.

The judgment also underlines a drafting point. A pleading that is internally inconsistent, refers to the wrong paragraphs, or does not clearly articulate the alleged representations or conduct can fail even before the Court reaches the substantive legal issues. In practice, that means businesses should gather the loan agreement, guarantee, notices, variation documents, assignment documents, correspondence and chronology early, and then decide whether the case involves only a defence or also a cross-claim.

The judgment is Australian Agrivision Pty Ltd v Wolstenholme (Leave to Amend) [2025] FCA 1612, delivered by Stewart J on 16 December 2025 in the Federal Court of Australia. The matter sat within the Commercial and Corporations National Practice Area, sub-area Commercial Contracts, Banking, Finance and Insurance.

The orders recorded that Mr Anderson's further amended interlocutory application, which he was granted leave to file on 16 December 2025, was dismissed with costs, and that he file and serve that further amended interlocutory application forthwith.

The reasons also record the procedural history relevant to delay: the proceeding was commenced on 1 October 2024, Agrivision was substituted on 20 December 2024, Mr Anderson filed his response on 26 February 2025, the matter was listed for final hearing on 18 July 2025 for 9 and 10 February 2026, and the interlocutory application seeking leave was filed on 10 November 2025.