Cadoroll Pty Ltd v Allegra Corporation Ltd

[1994] FCA 5

5   , 99

JUDGMENT NO. .n.. . . . .m..o., .eo . .amom.e,omw

IN THE FEDERAL COURT OF AUSTRALIA	) )
AUSTRALIAN CAPITAL TERRITORY	)
1 No. ACT G 29 of 1 9 9 2
DISTRICT REGISTRY	)
GENERAL DIVISION	)

BETWEEN: CADOROLL PTY LIMITED, ROENTGEN PTY LIMITED, SOUTHERN PLUMBING SUPPLIES PTY LIMITED, BALESCOPE PTY LIMITED, WILLIAM BRIAN LOFTUS. SRIDOT PTY

LIMITED, KENNETH JAMES CALLAUGHAN, ROY WILLIAM ELLIS, BRIAN DAVID BACKHOUSE. RIDGE CONSOLIDATED PTY LIMITED, PETER ROBERT HENRY and MADELINE MARIE LESTER

Applicants

AND: ALLEGRA CORPORATION LIMITED

First Respondent

ALLEGRA INVESTMENTS LIMITED

Second Respondent

MAUNTILL PTY LIMITED

Fifth Respondents

Third Respondent

PEGASUS LEASING LIMITED

RECEIVED	Fourth Respondent
2 4 JAN 1994
FEDERAL COURT OF	MICHAEL GEORGE SINCLAIR, MARUTA

AUSTRALIA	PEARSON and MICHAEL MARK0 ZIVKOVIC
PRINCIPAL	trading as FARNHAM SINCLAIR &
REOISTRY	ASSOCIATES

MINUTE OF ORDER

1 JUDGE MAKING ORDER : Neaves J

,-

DATE OF ORDER	17 January 1994
WHERE MADE	Canberra
THE COURT ORDERS THAT:

1.    The statement of claim filed herein be struck out.

2.   The applicants have liberty to file and serve an amended statement of claim within 45 days after the date of this order.

3.    In the event that an amended statement of claim is not filed and served withln that period of 45 days, the substantive application as against the third and fourth respondents and the first and third named fifth respondents stand dismissed, wlth costs including reserved costs.

4.    The applicants pay the costs of the third respondent and the first and third named fifth respondents of and incidental to the motion notice of which was filed on 12 February 1993 and of the fourth respondent of and incidental to the motion notice of which was filed on 8 March 1993.

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	j No. ACT G 29 of 1992
DISTRICT REGISTRY GENERAL DIVISION

BETWEEN :  CADOROLL PTY LIMITED, ROENTGEN PTY LIMITED, SOUTHERN PLUMBING SUPPLIES PTY LIMITED. BALESCOPE PTY LIMITED, WILLIAM BRIM LOFTUS. SRIDOT PTY LIMITED, CALDPOST PTY LIMITED, ANTHONY WILLIAM GRIFFIN, ANTHONY W GRIFFIN PTY LIMITED, HELEN GRIFFIN, HAMERLEEN PTY LIMITED. ALFRED NATHAN LESTER. LESTER FIRTH ASSOCIATES PTY LIMITED, ADOLPHE FREDERICK BEUTLER, HILLTRATE PTY LIMITED, MODOC PTY LIMITED, KENNETH JAMES CALLAUGHAN, ROY WILLIAM ELLIS, BRIAN DAVID BACKHOUSE. RIDGE CONSOLIDATED PTY LIMITED, PETER ROBERT HENRY and MADELINE 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

CORAM: Neaves J.

DATE: 17 January 1994

REASONS FOR JUDGMENT

Before the Court are two motlons each seeking orders that the statement of claim flled on behalf of the applicants, or alternatively a number of paragraphs of that statement of claim, be struck out and for consequential orders. The first of the two motions, notice of which was filed on 12 February 1993, is made by the third respondent to the proceeding, Mauntill Pty Limited, and by the first and third named respondents, Michael George Sinclair and Michael Marko Zivkovic trading, wlth Maruta Pearson, as Farnham Sinclair & Associates. The second of the two motlons, notice of which was given on 8 March 1993, is made by the fourth respondent Pegasus Leasing Limited. The motions are made under 0.11,

r.16 of the Federal Court Rules.

The motions are made in a proceeding, numbered
ACT G 29 of 1992, pending in this Court, that proceeding

having been commenced by application filed on 2 July 1992.

The application names 22 parties as applicants, being 12

corporations and 10 individuals. In addition to the respondents already identified, the appllcatlon names Allegra Corporation Limited as first respondent, Allegra Investments Limited as second respondent and Maruta Pearson as the second named fifth respondent. The proceeding is stayed so far as Maruta Pearson is concerned by reason of her bankruptcy.

The motions before the Court raise issues similar to those raised by the motions flled in the proceeding in this Court numbered ACT G 18 of 1992 and on which judgment has been given this day.

For reasons similar to those set out in that
judgment, the statement of claim is struck out. The

applicants are to have liberty to file and serve an amended statement of claim within 45 days after the date of this order. In the event that an amended statement of claim is not filed and served within that period of 45 days, the substantive application as against the third and fourth respondents and the first and third named fifth respondents is to stand dismissed, with costs including reserved costs. The applicants must -pay the costs of the third respondent and the first and third named fifth respondents of and incidental to the motion notice of which was filed on 12 February 1993 and of the fourth respondent of and incldental to the motion notice of which was filed on 8 March 1993.

I certify that thls and the

preceding 2 pages are a true copy of the Reasons

for Judgment herein of the

Honourable Mr Justice
Neaves .

Assoclate

Dated: 17 January 1994

Counsel for the applicants	Mr S. Finch
Solicitors for the applicants :	Minter Ellison Morris Fletcher
Counsel for the third

respondent and the first and

third named fifth respondents:  Mr B. Walker

Solicitors for the third

respondent and the first and

third named fifth respondents:  Blake Dawson Waldron

Counsel for the fourth

respondent Mr P. McNamara

Solicltors for the fourth

respondent	Macphillamy Cummins & Gibson
Date of hearing	19 March 1993