Cadoroll P/L v Allegra Corporation Ltd

[1994] FCA 713

JUDGMENT No. .... .,.,,.J ,-, 713 94

IN THE FEDERAL COURT OF AUSTRALIA	)
1
FLUSTRALIAN CAPITAL TERRITORY	1
I No. ACT G 27 of 1992
DISTRICT REGISTRY	)
I
GENERAL DIVISION	)

BETWEEN : CADOROLL PTY LIMITED, CADOSHARE PTY
LIMITED, SOUTHERN PLUMBING SUPPLIES

PTY LIMITED, ANTHONY WILLIAM GRIFFIN,

LIMITED, DENNIS HOWELL TERRACINI and

ELAINE MERLE TERRACINI

Applicants

AND: ALLEGRA CORPORATION LIMITED

First Respondent

ALLEGRA INVESTMENTS LIMITED

Fifth Respondents

Second Respondent

MAUNTILL PTY LIMITED

Third Respondent

PEGASUS LEASING LIMITED

Fourth Respondent

MICHAEL GEORGE SINCLAIR. MARUTA PEARSON and MICHAEL MARK0 ZIVKOVIC trading as FARNHAM SINCLAIR & ASSOCIATES

MINUTE OF ORDER

JUDGE MAKING ORDER :	Neaves J.
PATE OF ORDER	5 October 1994
WHERE MADE	Canberra
THE COURT ORDERS THAT:

1.    The applicants have liberty to file and serve on or before 4 November 1994 a further amended statement of claim.

2.   The motions on behalf of the third respondent and the first named of the fifth respondents and on behalf of the fourth respondent, in respect of each of which notice was filed on 26 April 1994, and the motion on behalf of the first and second respondents, notice of which was filed on 13 May 1994, be adjourned for mention on 21 November 1994.

3.    The costs of the motions be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)
I
AUSTRALIAN CAPITAL TERRITORY	1
1 No. ACT G 27 of 1992
DISTRICT REGISTRY	)
GENERAL DIVISION

BETWEEN:

Applicants

AND: ALLEGRA CORPORATION LIMITED

First Respondent

ALLEGRA INVESTMENTS LIMITED

Second Respondent

MAUNTILL PTY LIMITED

Third Respondent

PEGASUS LEASING LIMITED

Fourth Respondent

MICHAEL GEORGE SINCLAIR. MARUTA PEARSON and MICHAEL MARK0 ZIVKOVIC trading as FARNHAM SINCLAIR h ASSOCIATES

Fifth Respondents

0	Neaves J.
DATE :	5 October 1994

REASONS FOR JUDGMENT

Before the Court are three motions each seeking orders that the amended statement of claim filed on behalf of the applicants on 3 March 1994, or alternatively a number of paragraphs of that amended statement of claim, be struck out and for consequential orders. The first of the three motions, notice of which was filed on 26 April 1994, is made by the third respondent to the proceeding, Mauntill Pty Limited, and by the first named of the fifth respondents, Michael George Sinclair trading, with Maruta Pearson and Michael Marko Zivkovic, as Farnham Sinclair & Associates. The second of the three motions, notice of which was also filed on 26 April 1994, is made by the fourth respondent, Pegasus Leasing Limited. The third of the motions, notice of which was filed on 13 May 1994, is made by the first and second respondents, Allegra Corporation Limited and Allegra Investments Limited. The motions are made under 0.11, r.16, pars (a) and (b) of the Federal Court Rules.

The motions are made in a proceeding, numbered ACT G 27 of 1992, pending in this Court. That proceeding was commenced by application filed on 26 June 1992. The application names 27 parties as applicants, being 13 corporations and 13 individuals, one of those individuals being joined in two capacities. The respondents are identified in the preceding paragraph of these reasons. The proceeding relates to a thoroughbred bloodstock breeding

partnership known as "The Capricorn Park No. 3 Breeding
Partnership".

The motions before the Court raise issues similar to those raised by the motions filed in the proceeding in this Court numbered ACT G 18 of 1992 and on which judgment has been given this day. It is to be noted, however, that the motions, in referring to the specific paragraphs of the amended statement of claim which are sought to be struck out, fail to take account of the circumstance that the amended statement of claim contains two paragraphs, pars 13 and 19, which have no counterpart in the further amended statement of claim the subject of the motions in the proceeding numbered ACT G 18 of 1992.

Issues other than those considered upon the motions in the proceeding numbered ACT G 18 of 1992 are raised by the motions in the present proceeding. Subparagraph 13(b) appears to require amendment as it refers to six individuals as	applicants none of whom is named as a party to the proceeding	(see also subpar.g(e)). Paragraph 14 would also appear to
require amendment as there are a number of applicants in relation to whom it is not alleged that any conversation took place between them, or anyone on their behalf, and either Michael George Sinclair or Michael Zivkovic. Consequential amendments may be required to other paragraphs. Paragraphs 18 and 19 may require amendment as it is not correct to say, as the paragraph infers, that Michael George Sinclair had a
conversation with each of the applicants. A similar comment is apt in relatlon to par.19.
For those reasons and for reasons similar to those set out in the judgment in proceeding numbered ACT G 18 of 1992, the motions are adjourned to allow the applicants a period within which to file and serve, if so advised, a further amended statement of claim. If the applicants propose to file and serve a further amended statement of claim, the same is to be filed and served on or before 4 November 1994. The motions will be listed for mention on 21 November 1994. The costs of the motions are reserved.

I certify that this and the preceding

3 pages are a true copy of the

Reasons for Judgment herein of the

Honourable Just

Dated: 5 October 1994 U

Counsel for the applicants other : Mr B.R. McCllntock

than Frederick John Richards

There was no appearance for Frederick John Richards

Solicitors for the applicants : Minter Ellison Morris

Fletcher

Counsel for the first and : Mr R.J. Arthur

second respondents

Solicitors for the first and : Phillips Fox

second respondents

Counsel for the third respondent : Mr R.J. Weber

Solicitors for the third respondent: Blake Dawson Waldron

Counsel for the fourth respondent : Mr R.C. Refshauge

Solicitors for the fourth	: Macphillamy Cummins h
respondent	Gibson

Counsel for the first named of the : Mr R.J. Weber

fifth respondents

Solicitors for the first named of : Blake Dawson Waldron

the fifth respondents

Date of hearing : 24 May 1994