Bowen Energy Ltd v 2KD Drilling Pty Ltd

[2009] FCA 746

FEDERAL COURT OF AUSTRALIA

Bowen Energy Ltd v 2KD Drilling Pty Ltd [2009] FCA 746

Trade Practices Act 1974 (Cth) s 87

BOWEN ENERGY LTD (ACN 120 965 095) v 2KD DRILLING PTY LTD

(ACN 129 875 467) and KEVIN NEWMAN

NSD 475 of 2009

EMMETT J

9 JUNE 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 475 of 2009

BETWEEN:

BOWEN ENERGY LTD (ACN 120 965 095)
Applicant

AND:

2KD DRILLING PTY LTD (ACN 129 875 467)
First Respondent

KEVIN NEWMAN
Second Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

9 JUNE 2009

WHERE MADE:

SYDNEY

THE COURT:

1.Notes the usual undertaking as to damages given by the Applicant. 

2.Orders that:

(a)The First Respondent and its respective officers, servants and agents be restrained from using, selling, hiring or otherwise dealing with the Bournedrill Rig and Associated Equipment described in annexure A hereto up to and including 2 July 2009;

(b)The First Respondent within 24 hours identify to the Applicant the location of the Bournedrill Rig and Associated Equipment described in annexure A hereto;

(c)The First Respondent permit inspection of the Bournedrill Rig and Associated Equipment described in annexure A hereto by the Applicant upon reasonable notice;

(d)The First Respondent provide to the Applicant within 48 hours evidence of any registration and insurance cover applicable to the Bournedrill Rig and Associated Equipment described in annexure A hereto.

3.Orders that the interlocutory application be stood over to 2 July 2009 before Stone J.

4.Directs the Respondent file and serve a defence no later than 23 June 2009.

5.Reserves the costs of the interlocutory hearing to date.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 475 of 2009

BETWEEN:

BOWEN ENERGY LTD (ACN 120 965 095)
Applicant

AND:

2KD DRILLING PTY LTD (ACN 129 875 467)
First Respondent

KEVIN NEWMAN
Second Respondent

JUDGE:	EMMETT J
DATE:	9 JUNE 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant claims an order pursuant to s 87 of the Trade Practices Act 1974 (Cth) (the Act) declaring that a drilling contract as described in its statement of claim is void ab initio or void at all times on and after such date as the Court thinks fit.  The drilling contract was made between the applicant and the first respondent on 7 April 2008.  The applicant alleges that it entered into the drilling contract in reliance upon certain conduct and representations engaged in and made by the first respondent, through the second respondent, who is a director of the first respondent.

2. According to the statement of claim, the drilling contract is for a term of four years.  On commencement, the applicant is to transfer 10% of the equity in a drilling rig and associated equipment to the first respondent.  The applicant alleges that it acquired the drilling rig and associated equipment in reliance upon the conduct and representations to which I have just referred.  On any view the applicant is at present the owner or a substantial owner of the drilling equipment and associated equipment.  There is a substantial dispute between the parties as to whether the drilling contract is still on foot and whether there has been a breach of it.  There is also a substantial dispute as to whether or not the conduct alleged was actually engaged in by the first respondent. 

3. The matter is listed for directions before Stone J on 2 July 2009, being the first return date of the proceeding.  However, the applicant sought interlocutory relief on an urgent basis pending the determination of the proceeding.  In its motion of 4 June 2009, the applicant claims an order that the first respondent be restrained from using, selling, hiring or otherwise dealing with the drilling rig and associated equipment without the prior consent of the applicant or until further order of the Court.  The applicant also seeks orders that the first respondent identify the location of the drilling rig and associated equipment, that the first respondent permit the applicant to inspect the drilling rig and associated equipment and that the first respondent provide to the applicant evidence of registration and insurance cover applicable to the drilling rig and associated equipment. 

4. When the application for interlocutory relief was called on for hearing this morning, counsel for the respondents indicated that he has no instructions to oppose the interlocutory relief on a short term basis.  Having considered the affidavit of Mr Mark Shepherd filed on 4 June 2009, I am satisfied that there is sufficient basis for granting the interlocutory relief claimed in circumstances where there is at least a seriously arguable case that the applicant has a proprietary interest in the drilling rig and associated equipment.

5. I therefore propose to direct the respondents to file a defence to the statement of claim on or before 23 June 2009.  I will also make orders in terms of prayer 1 of the notice of motion subject to the applicant giving the usual undertaking as to damages and I will stand the interlocutory application over for directions before the docket judge on 2 July. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       9 June 2009

Counsel for the Applicant:	Mr D Williams SC with Mr J Tobin
Solicitor for the Applicant:	Gadens Lawyers
Counsel for the Respondents:	Mr N Dragojlovic
Solicitor for the Respondents:	Cahills Solicitors

Date of Hearing:	9 June 2009
Date of Judgment:	9 June 2009