A.C.N. 612 121 954 Pty Ltd v Australian Beer Company Pty Ltd

[2022] FCA 895

FEDERAL COURT OF AUSTRALIA

A.C.N. 612 121 954 Pty Ltd v Australian Beer Company Pty Ltd [2022] FCA 895

File number:

QUD 213 of 2021

Judgment of:

DERRINGTON J

Date of judgment:

1 August 2022

Catchwords:

PRACTICE AND PROCEDURE – application to dismiss action – applicants failed to pursue the proceedings in a timely manner due to impecuniosity – second applicant recently made bankrupt and trustee-in-bankruptcy had been deemed to abandon the action pursuant to s 60(3) of the Bankruptcy Act 1966 (Cth) – order made dismissing proceedings

Legislation:

Bankruptcy Act 1966 (Cth)

Federal Court of Australia Rules 2011 (Cth)

Division:

General Division

Registry:

Queensland

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs:

6

Date of hearing:

1 August 2022

Counsel for the Applicants:

The Applicants did not appear

Solicitor for the Respondent:

Mr E Styles of Mills Oakley

ORDERS

QUD 213 of 2021

BETWEEN:

A.C.N. 612 121 954 PTY LTD (ACN 612 121 954)

First Applicant

EARLE ANTHONY BURROWS

Second Applicant

AND:

AUSTRALIAN BEER COMPANY PTY LTD (ACN 159 387 069)

Respondent

ORDER MADE BY:	DERRINGTON J
DATE OF ORDER:	1 AUGUST 2022

THE COURT ORDERS THAT:

1.The proceedings commenced on 1 July 2021 be dismissed.

2.The applicants pay the respondent’s costs of the action to be taxed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

1. In this matter, ACN 612 121 954 Pty Ltd (formerly known as Four Point Five Brewing Pty Ltd) (the Company), which is the first applicant, and Mr Burrows, the second applicant, have brought proceedings against the company Australian Beer Company Pty Ltd.  By an instanta application made at a case management hearing, Australian Beer Company sought an order dismissing the proceedings.

2. The proceedings have had an unfortunate existence largely due to the applicants’ inability to fund them. The proceedings were commenced on 1 July 2021, and in the past 12 months they have not proceeded to the stage where the applicants have been able to formulate a sustainable statement of claim. It has become apparent during the course of the proceedings that each applicant has been impecunious and, recently, Mr Burrows was made bankrupt pursuant to a sequestration order. Mr Jason Porter was appointed as Mr Burrows’ trustee in bankruptcy. On 1 July 2022, Mr Porter was given notice of the current proceedings and has corresponded with the solicitors for the respondent about them. On the evidence before the Court, it is apparent that for the purposes of s 60(3) of the Bankruptcy Act 1966 (Cth), the trustee has had notice of the proceedings since 1 July 2022. By operation of that section, the trustee, who has not made an election whether to proceed with the proceedings or not, is deemed to have abandoned them and that can be taken to be the position for the purposes of the present application at least in relation to Mr Burrows’ claim.

3. The evidence before the Court also shows that on 5 April 2022, this Court made orders striking out the last filed statement of claim.  Leave was given for the applicants to file a fresh statement of claim on or before 14 days after the delivery of judgment on the second applicant’s notice of motion in the New South Wales District Court proceedings 2020 of 30568.  The evidence before the Court shows that Judge Olsson SC of the New South Wales District Court delivered judgment in that matter on 11 April 2022.  In it, her Honour dismissed Mr Burrows’ application to set aside the default judgment entered against him.  That judgment was apparently the foundation of his subsequent bankruptcy.  More importantly, for the purposes of the present application, is that neither Mr Burrow nor the first applicant, of which Mr Burrows is the sole director, have filed any fresh statement of claim. 

4. It is apparent that neither Mr Burrows nor the first applicant has any further interest in the proceedings.  Neither appeared at the matter when it was called on for hearing today.  It is apparent that the applicants are unwilling or, at least, unable to prosecute the action.  That want of prosecution, intentional or otherwise, justifies their dismissal.  It would involve unnecessary time, effort and expenditure were its existence to be prolonged. 

5. It follows that the respondent has established, for the purposes of r 1.32 of the Federal Court of Australia Rules 2011 (Cth) that it is in the interests of justice for the proceedings to be dismissed.

6. In those circumstances, the orders of the court are:

   (1)the proceedings are to be dismissed; and

   (2)that the applicants pay the respondent’s costs of the proceedings.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.

Associate:      

Dated:       1 August 2022