Australian Toy Retailers Pty Ltd v Westoy Pty Ltd

[1995] FCA 651

IN THE FEDERAL COURT OF AUSTRALIA            )

)

NEW SOUTH WALES DISTRICT REGISTRY            )                No. NG 3265 of 1995

)

GENERAL DIVISION   )

BETWEEN:AUSTRALIAN TOY RETAILERS PTY LTD (IN LIQUIDATION) (ACN 002 810 022)

Applicant

AND:WESTOY PTY LIMITED (IN LIQUIDATION)

(ACN 002 817 101)

First Respondent

PETER M. WALKER

Second Respondent

JUDGE MAKING ORDERS: FOSTER J

DATE:                   28 JULY 1995

PLACE:                SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.Leave be granted to the first respondent to bring a cross-claim in these proceedings against Michael James Soulos and Marilyn Soulos, former directors of the applicant, pursuant to s 558M(3) of the Corporations Law, in respect of debts specified in the notice of motion filed in these proceedings on 20 June 1995.

2.Costs be reserved.

THE COURT FURTHER DIRECTS THAT:

1.The cross-claim, which is the subject of this application be filed and served on or before 2 August 1995.

2.The cross-respondents' defence to the cross-claim be filed on or before 16 August 1995.

3.The matter be listed for further directions on 18 August 1995.

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            )                No. NG 3265 of 1995

)

GENERAL DIVISION   )

BETWEEN:AUSTRALIAN TOY RETAILERS PTY LTD (IN LIQUIDATION) (ACN 002 810 022)

Applicant

AND:WESTOY PTY LIMITED (IN LIQUIDATION)

   (ACN 002 817 101)

First Respondent

PETER M. WALKER

Second Respondent

CORAM:            FOSTER J

DATE:                   28 JULY 1995

PLACE:                SYDNEY

REASONS FOR JUDGMENT

(Extempore)

HIS HONOUR: This is an application by the first respondent, Westoy Pty Ltd, seeking leave to bring a cross-claim in these proceedings against Michael James Soulos and Marilyn Soulos, in their capacity as former directors of the applicant company. The application is made pursuant to s 558M(3) of the Corporations Law, in respect of specific debts owed to the applicant company by the first respondent.

After hearing all the submissions that have been made to me and receiving an outline of the issues which are to be raised by the cross-claim, I have come to the conclusion that the most convenient course of action at the moment is to grant the leave sought. In reaching this conclusion I have considered that the bringing of the anticipated cross-claim will, at this point of time, lengthen the interlocutory proceedings. On the other hand, I consider that any increase in time may be well spent in further definition of the pleadings.

I have also considered the possibility that as these proceedings progress it may become obvious that the interests of justice and the use of resources will, in fact, be better met by the cross-claim being heard separately. However, in my view, this issue will become clearer if I make the order sought now, than if separate proceedings are taken and the question as to whether there should be a joinder of the hearings is later raised.

In these circumstances I grant the leave sought in the terms of the first paragraph of the notice of motion filed on 20 June 1995. I do not think it appropriate to make any order as to costs until the situation becomes clearer. I therefore reserve the question of costs.

I further order that the cross-claim, which is the subject of this application, be filed and served on or before 2 August 1995; that the cross-respondents' defence to the cross-claim be filed on or before 16 August 1995; and the matter be listed for further directions on 18 August 1995.

I certify that the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.

Associate:

Date:   28 JULY 1995

A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:   D.R.S. CREAIS

INSTRUCTED BY:   ROBINSON CREAIS

COUNSEL FOR THE RESPONDENT:   G. CUSSEN

INSTRUCTED BY:   KEMP STRANG & CHIPPINDALL

DATE OF HEARING:                 28 JULY 1995

DATE OF JUDGMENT:          28 JULY 1995