Bacaral Pty Ltd v Bodnar Pty Ltd

[2000] VSC 448

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 7268 of 2000

BACARAL PTY. LTD.	Plaintiff
v.
BODNAR PTY. LTD. AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 OCTOBER 2000
DATE OF JUDGMENT:	24 OCTOBER 2000
CASE MAY BE CITED AS:	BACARAL PTY. LTD. v. BODNAR PTY. LTD. & ANOR.
MEDIUM NEUTRAL CITATION:	[2000] VSC 448

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. D. Maclean	Moores Legal
For the Second Defendant	Mr. N. Hopkins	Deacons Graham & James

HIS HONOUR:

1. Having considered this matter overnight, it is my opinion that the appropriate course to adopt is to accept the undertaking of the administrator that from the proceeds of sale of the Jasmine Lodge Nursing Home business, he deposit in a separate bank account in the name of Jasmine Lodge Vic Pty Ltd (administrator appointed) the sum of $431,250, such sum to be held pending the hearing and determination of the proceeding or further order.

1. That sum represents the figure of $251,250 appearing at the foot of the document handed to me yesterday by Mr Hopkins; the amount of $135,000 being the indebtedness of Jasmine Lodge to the National Australia Bank, and the amount of $45,000, which the administrator estimates to be his legal costs to date and his future legal costs in relation to this proceeding.

1. I should add that the handwriting and figures in red ink on the document were put there by me and that I have signed and dated the document with yesterday's date and placed it on the court file.

1. That undertaking having been given by the administrator, I make the following orders in the proceeding:

1.        I order that the plaintiff's summons filed 18 October 2000 be dismissed;

2.I give leave to the plaintiff to proceed against Jasmine Lodge Vic Pty Ltd (administrator appointed);

3.I order that the second-named defendant deliver its defence by Wednesday 25 October;

4.        I order that the plaintiff deliver any reply by Friday 27 October;

5.I direct that any further affidavits to be relied upon by the plaintiff be filed and sworn on or before 27 October;

6.I order that any further affidavits to be relied upon by the second-named defendant be filed and sworn on or before Wednesday 1 November;

7.I refer the proceeding to the Listing Master on a date to be fixed by the associate to the Listing Master to enable a date to be fixed for the trial of the proceeding after 1 November. 

I note that it is estimated that the trial will take approximately one day.  I request the Listing Master to give the proceeding such priority as she considers appropriate;

8.I direct that the solicitors for the plaintiff serve a copy of this order on the National Australia Bank and Rebecca Atkin;

9.        I reserve the costs of this application;

10.      I reserve liberty to the parties to apply, and

11.I direct that this order be prepared by the solicitors for the plaintiff and brought to me for authentication.

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