Clime Capital Limited v Credit Corp Group Limited

[2010] FCA 112

FEDERAL COURT OF AUSTRALIA

Clime Capital Limited v Credit Corp Group Limited [2010] FCA 112

Citation:		Clime Capital Limited v Credit Corp Group Limited [2010] FCA 112
Parties:		CLIME CAPITAL LIMITED (ACN 106 282 777) v CREDIT CORP GROUP LIMITED (ACN 092 697 151)
File number(s):		NSD 1994 of 2008
Judges:		GRAHAM J
Date of judgment:		3 February 2010
Date of hearing:	3 February 2010
Catchwords:		PRACTICE AND PROCEDURE – interrogatories as to state of controlling mind of a corporation – costs where motion for further answers to interrogatories abandoned
Cases cited:		Shop Distributive and Allied Employees Association v Karellas Investments Pty Limited [2007] FCA 959 Telstra Corporation Limited v The Minister for Communications, Information Technology and the Arts [2007] FCA 1398 Wildia Pty Ltd v Lee (1984) 9 ACLR 122 Allied Pastoral Holdings Proprietary Limited v The Commissioner of Taxation [1983] 1 NSWLR 1 W R Carpenter Holdings Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (2008) 237 CLR 198 Meth v Norbert Steinhardt & Son Limited (1959) 33 ALJR 78
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	M B J Lee
Solicitor for the Applicant:	William Roberts Lawyers
Counsel for the Respondent:	M J Darke
Solicitor for the Respondent:	Piper Alderman

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1994 of 2008

BETWEEN: CLIME CAPITAL LIMITED (ACN 106 282 777)
Applicant

AND: CREDIT CORP GROUP LIMITED (ACN 092 697 151)
Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	3 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT:

1.Directs that the applicant serve such further interrogatories as it may advised, in draft, on the respondent on or before 15 February 2010, with a view to a consent order being made as to the administration of proper interrogatories shortly thereafter.

2.Grants leave to the applicant to apply by motion for such interrogatories as may not be the subject of agreement between the parties to be administered, such motion to be returnable before the Court at 10:15am on Wednesday 17 March 2010.

3.Orders that the applicant’s Notice of Motion filed 16 December 2009 be dismissed.

4.Orders that the applicant pay the costs of the respondent of the motion and 90% of the respondent’s costs of its Verified Statement in Answer to Interrogatories filed 14 December 2009.

5.Orders that the matter stand over for directions to 9:30am on Friday 9 April 2010.

6.Grants liberty to both parties to apply on 3 days’ notice.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1994 of 2008

BETWEEN: CLIME CAPITAL LIMITED (ACN 106 282 777)
Applicant

AND: CREDIT CORP GROUP LIMITED (ACN 092 697 151)
Respondent

JUDGE:	GRAHAM J
DATE:	3 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter presently before the Court is a Notice of Motion filed by the applicant on 16 December 2009 seeking further answer to interrogatories administered by the applicant on the respondent by a Notice to Answer Interrogatories filed 23 November 2009. 

2. The hearing of the motion has proceeded for approximately three hours and it has emerged that there are deficiencies in the interrogatories as administered by the applicant which has led to an indication being given by counsel for the applicant that it no longer wishes to press the motion seeking further answers to the interrogatories as previously administered.

3. Consideration has been given during the course of argument to a number of cases, including Shop Distributive and Allied Employees Association v Karellas Investments Pty Limited [2007] FCA 959, Telstra Corporation Limited v The Minister for Communications, Information Technology and the Arts [2007] FCA 1398, Wildia Pty Ltd v Lee (1984) 9 ACLR 122, Allied Pastoral Holdings Proprietary Limited v The Commissioner of Taxation [1983] 1 NSWLR 1, W R Carpenter Holdings Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (2008) 237 CLR 198 and Meth v Norbert Steinhardt & Son Limited (1959) 33 ALJR 78.

4. In the light of the position indicated by the applicant, it is no longer necessary to address the specific interrogatories that were administered, and the answers which have been provided to those interrogatories.  The applicant, however, seeks an opportunity to administer further interrogatories in proper form which will address, in substance, the issues to which the earlier interrogatories related. 

5. The earlier interrogatories have a series of annexures identified as A, B, C and D, being: a document apparently published by the respondent entitled ‘FY07 Results Presentation’, a letter from the respondent to the Australian Stock Exchange Limited dated 7 November 2007, a document apparently produced by the respondent and made available on discovery, being a set of figures, the first page of which bears the heading ‘Credit Corp Group forecast FY2008 Oct-07’ and a letter from the respondent to the Australian Stock Exchange Limited of 11 February 2008.

6. It seems to me that an opportunity ought to be afforded to the applicant to administer proper interrogatories in relation to these documents and the circumstances in which they were brought into existence and published.

7. In the circumstances, the orders that I make are:

   (1)I direct that the applicant serve such further interrogatories as it may be advised in draft on the respondent on or before 15 February 2010 with a view to a consent order being made for the administration of proper interrogatories shortly thereafter.

   (2)I grant leave to the applicant to apply by motion for such interrogatories as may not be the subject of agreement between the parties to be administered, such motion to be returnable before the court at 10.15 am on Wednesday, 17 March 2010. 

   (3)I order that the applicant’s Notice of Motion filed 16 December 2009 be dismissed.

   (4)I order that the applicant pay the respondent’s costs of the Notice of Motion and 90 per cent of the costs of the respondent of its Verified Statement in Answer to Interrogatories filed 14 December 2009.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:
Dated:        19 February 2010