Carp Nominees Pty Ltd (ACN 004 797 746) v RCR Rubber and General Distributors Pty Ltd (ACN 004 797 755)

[1996] FCA 1002

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY       )    No. VG 640 of 1996

)

GENERAL DIVISION                 )

BETWEEN:  CARP NOMINEES PTY LTD (ACN 004 797 746)

(First Applicant)

AND:     RCR RUBBER & GENERAL DISTRIBUTORS PTY LTD

(ACN 004 797 755)

(Second Applicant)

AND:     AUSTRALIAN SPECIALITY CHEMICALS PTY LTD

(ACN 060 734 901)

(Respondent)

CORAM:    Ryan J

DATE:     31 October 1996

PLACE:    Melbourne

REASONS FOR JUDGMENT

RYAN J:   It may be that some, or all of the matters urged by Mr Maryniak on behalf of the respondent will prove cogent in persuading a Judge considering the matter later, to make an order for costs of the motion for interlocutory relief in favour of the respondent.  However, those matters should be no less persuasive to a Judge determining the substantive issues, and being fully apprised of all of the matters relevant to the exercise of discretion in respect of the costs of the motion for interlocutory relief than they are now.

On the other hand, I consider that to make a peremptory order for costs in the present circumstances may operate to discourage litigants from taking the sensible course, which has been taken in this case, of agreeing that the hearing of the motion should be treated as the trial of the action.  In all the circumstances, I consider the appropriate course is to reserve the costs of the motion.  Accordingly, the orders that I make are:

A.BY CONSENT:

1. That the applicant file and serve an amended application and an amended statement of claim on or before 1 November 1996 and the respondent file and serve its defence in any cross-claim on or before 8 November 1996;

1. That each party give discovery to the other on or before 15 November 1996 and permit inspection of the other parties discovered documents on or before 18 November 1996;

1. That subject to any order of the trial judge evidence in this proceeding be given by way of affidavits;

1. That any affidavits to be relied on by the applicant be filed and served by 28 November 1996;

1. That any affidavits to be relied upon by the respondents be filed and served by 12 December 1996;

1. That any affidavits in reply to be relied upon by the applicant be filed and served by 19 December 1996;

1. That the matter be placed in the list of cases to be called over on 1 November 1996 to be fixed for hearing with such priority as the Judge conducting the callover is able to accord it, the estimated duration of the trial being noted as two to three days.

B.AND IT IS FURTHER ORDERED:

1. That the applicant's costs of the motion on notice dated 18 October 1996 be reserved.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.

Associate:

Date:

Counsel for the applicants   :    Mr B.N. Caine

Solicitors for the applicants     :    Lander & Rogers

Counsel for the respondent   :    Mr A.J. Maryniak

Solicitors for the respondent     :    Blake Dawson Waldron

Date of Hearing             :    31 October 1996

Date of Judgment            :    31 October 1996