Cadoroll P/L v Allegra Corporation Ltd

[1994] FCA 712

712

JUDGMENT No. ..... ,,.,,J .-

THE FEDERAL COURT OF AUSTRALIA )

1

fiUSTRALIAN CAPITAL TERRITORY	)
) No. ACT G 29 of 1992
DISTRICT REGISTRY	1
GENERAL DIVISION

BETWEEN: CADOROLL PTY LIMITED, ROENTGEN PTY LIMITED. SOUTHERN PLUMBING SUPPLIES PTY LIMITED. BALESCOPE PTY LIMITED, WILLIAM BRIAN LOFTUS. CALDPOST PTY LIMITED, ANTHONY WILLIAM GRIFFIN, ANTHONY W GRIFFIN PTY LIMITED. HELEN

Applicants

AND: ALLEGRA CORPORATION LIMITED

First Respondent

ALLEGRA INVESTMENTS LIMITED

Second Respondent

MAUNTILL PTY LIMITED

Fifth Respondents

Third Respondent

PEGASUS LEASING LIMITED

Fourth Respondent

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

MINUTE OF ORDER

JUDGE MAKING ORDER :	Neaves J .
DATE 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	)
1
AUSTRALIAN CAPITAL TERRITORY	1
I No. ACT G 29 of 1992
DISTRICT REGISTRY	1 \
GENERAL DIVISION	j

BETWEEN: CADOROLL PTY LIMITED. ROENTGEN PTY ALFRED NATHAN LESTER. LESTER FIRTH ASSOCIATES PTY LIMITED. ADOLPHE FREDERICK BEUTLER, HILLTRATE PTY LIMITED. MODOC PTY LIMITED. KENNETY JAMES CALLAUGHAN, ROY WILLIAM ELLIS, BRIAN DAVID BACKHOUSE, RIDGE CONSOLIDATED PTY LIMITED and MADELINK MARIE LESTER

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 & ASSOCIATES

Fifth Respondents

LRAM: 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 flfth 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 29 of 1992, pending in this Court. That proceeding was commenced by application filed on 2 July 1992. The application names 22 parties as applicants, being 12 corporations and 10 individuals. When the present motions came on for hearing counsel for the applicants sought and was granted leave to file notices of discontinuance on behalf of two of the applicants, Sridot Pty Limited and Peter Robert Henry. The respondents to the proceeding have been identified

in the preceding paragraph of these reasons. The proceeding relates to a thoroughbred bloodstock breeding partnership known as "The Capricorn Park No 4 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.

Other matters also require attention. Paragraphs 9, 12 and 17 and the Schedules require amendment to delete the references to Sridot Pty Limited and Peter Robert Henry. It is to be noted that one of the applicants, William Brian Loftus, is not mentioned in par.9 though that circumstance does not appear to be reflected in other paragraphs of the amended statement of claim. Subparagraphs 9(d) and 12(iv) refer to Michael George Sinclair having a conversation with J.W. Firth on his own behalf, yet J.W. Firth is not a party to

the proceeding. Subparagraph 18(a) provides no sufficient basis to support the alleged falsity of any of the	representations alleged in pars 16 and 17 at least so far as
the respondents other than Michael George Sinclair are concerned.
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 mentlon 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

Dated: 5 October 199

Counsel for the applicants	Mr B.R. McClintock
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 &

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