Acer Computer Australia Pty Limited v Carter

Case •

[2007] FCA 1942

•

21 November 2007

FEDERAL COURT OF AUSTRALIA

Acer Computer Australia Pty Limited v Carter [2007] FCA 1942

ACER COMPUTER AUSTRALIA PTY LIMITED ACN 003 872 768, AUDIO PRODUCTS GROUP PTY LIMITED ACN 054 550 499, HAGEMEYER BRANDS AUSTRALIA PTY LIMITED ACN 001 375 686, INGRAM MICRO PTY LIMITED ACN 112 487 966, PANASONIC AUSTRALIA PTY LIMITED ACN 001 592 187, PEBBLE ELECTRONICS PTY LIMITED ACN 104 094 993, THINK APPLICANCES PTY LIMITED ACN 104 094 993, GRUNDIG AUSTRALIA PTY LIMITED ACN 089 579 279 AND FUJITSU GENERAL (AUST.) PTY LIMITED ACN 001 229 554 v PHILIP PATRICK CARTER AND DAVID LAURENCE MCEVOY (IN THEIR CAPACITY AS JOINT & SEVERAL RECEIVERS & MANAGERS OF BETTA STORES LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 009 710 605, BETTA STORES (SOUTHERN) PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 059 881 220, BETTA STORES (NORTHERN) PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 112 330 944, A.K. TRUSCOTT INVESTEMENTS PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 007 818 493 AND BSL FINANCE PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 058 061 822)
NSD 789 OF 2007

GRAHAM J
21 NOVEMBER 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 789 OF 2007

BETWEEN:

ACER COMPUTER AUSTRALIA PTY LIMITED ACN 003 872 768
First Applicant

AUDIO PRODUCTS GROUP PTY LIMITED ACN 054 550 499
Second Applicant

HAGEMEYER BRANDS AUSTRALIA PTY LIMITED ACN 001 375 686
Third Applicant

INGRAM MICRO PTY LIMITED ACN 112 487 966
Fourth Applicant

PANASONIC AUSTRALIA PTY LIMITED ACN 001 592 187
Fifth Applicant

PEBBLE ELECTRONICS PTY LIMITED ACN 104 094 993
Sixth Applicant

THINK APPLICANCES PTY LIMITED ACN 104 094 993
Seventh Applicant

GRUNDIG AUSTRALIA PTY LIMITED ACN 089 579 279
Eighth Applicant

FUJITSU GENERAL (AUST.) PTY LIMITED ACN 001 229 554
Ninth Applicant

AND:

PHILIP PATRICK CARTER AND DAVID LAURENCE MCEVOY IN THEIR CAPACITY AS JOINT & SEVERAL RECEIVERS & MANAGERS OF BETTA STORES LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 009 710 605, BETTA STORES (SOUTHERN) PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 059 881 220, BETTA STORES (NORTHERN) PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 112 330 944, A.K. TRUSCOTT INVESTMENTS PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 007 818 493 AND BSL FINANCE PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 058 061 822)
Respondents

JUDGE:

GRAHAM J

DATE OF ORDER:

21 NOVEMBER 2007

WHERE MADE:

SYDNEY

THE COURT:

1.Orders the respondents to pay the applicants’ costs of the Notice of Motion filed 14 June 2007 referable to the claims made in paragraphs 1, 2(a) and 2(b), up to and including 9 November 2007.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 789 OF 2007

BETWEEN:

ACER COMPUTER AUSTRALIA PTY LIMITED ACN 003 872 768
First Applicant

AUDIO PRODUCTS GROUP PTY LIMITED ACN 054 550 499
Second Applicant

HAGEMEYER BRANDS AUSTRALIA PTY LIMITED ACN 001 375 686
Third Applicant

INGRAM MICRO PTY LIMITED ACN 112 487 966
Fourth Applicant

PANASONIC AUSTRALIA PTY LIMITED ACN 001 592 187
Fifth Applicant

PEBBLE ELECTRONICS PTY LIMITED ACN 104 094 993
Sixth Applicant

THINK APPLICANCES PTY LIMITED ACN 104 094 993
Seventh Applicant

GRUNDIG AUSTRALIA PTY LIMITED ACN 089 579 279
Eighth Applicant

FUJITSU GENERAL (AUST.) PTY LIMITED ACN 001 229 554
Ninth Applicant

AND:

PHILIP PATRICK CARTER AND DAVID LAURENCE MCEVOY IN THEIR CAPACITY AS JOINT & SEVERAL RECEIVERS & MANAGERS OF BETTA STORES LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 009 710 605, BETTA STORES (SOUTHERN) PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 059 881 220, BETTA STORES (NORTHERN) PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 112 330 944, A.K. TRUSCOTT INVESTMENTS PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 007 818 493 AND BSL FINANCE PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) ACN 058 061 822)
Respondents

JUDGE:

GRAHAM J

DATE:

21 NOVEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. These proceedings were commenced by an Application filed in the New South Wales District Registry of the Court on 7 May 2007. 

  2. On 30 May 2007, a notice of conditional appearance was filed by the respondents, Philip Patrick Carter and David Laurence McEvoy. 

  3. When the matter was before the Court yesterday for the hearing of a Notice of Motion filed by the respondents on 14 June 2007 and a Notice of Motion filed by the applicants on 13 August 2007, senior counsel for the respondents informed me that the respondents no longer sought relief in terms of paragraphs 1, 2(a) and 2(b) of the Notice of Motion filed by the respondents on 14 June 2007.

  4. The Notice of Motion had originally been supported by an affidavit of Garry John Hamilton sworn 13 June 2007. 

  5. Senior counsel for the respondents has indicated that the respondents now appear unconditionally and an undertaking has been given to file a notice of unconditional appearance on or before 23 November.  The only remaining relief sought in the respondents’ Notice of Motion is the transfer of the proceedings to the Queensland Registry of the Court.

  6. It is acknowledged by senior counsel for the respondents that the proper time for consideration of the remaining prayer for relief in the Notice of Motion filed 14 June 2007 will be not before the close of the pleadings in the case. 

  7. It seems to me that in the light of the abandonment of the claims made in paragraphs 1, 2(a) and (b) of the Notice of Motion filed 14 June 2007, those parts of it ought to be formally disposed of at this stage and the question of costs in relation to those prayers for relief addressed. 

  8. Senior counsel for the respondents does not want to be heard in opposition to an order that the costs of the Notice of Motion filed 14 June 2007 referrable to the abandoned prayers for relief up to and including 9 November 2007 be paid by the respondents.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:       7 December 2007

Counsel for the Applicants: M S Henry
Solicitor for the Applicants: Cosoff Cudmore Kox
Counsel for the Respondents: A G Bell SC and D F Villa
Solicitor for the Respondents: Minter Ellison
Date of Hearing: 20, 21 November 2007
Date of Judgment: 21 November 2007
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