Coeclerici Asia Pte Limited v Gujarat NRE Coke Limited
[2013] FCA 264
•25 March 2013
FEDERAL COURT OF AUSTRALIA
Coeclerici Asia Pte Limited v Gujarat NRE Coke Limited [2013] FCA 264
Citation: Coeclerici Asia Pte Limited v Gujarat NRE Coke Limited [2013] FCA 264 Parties: COECLERICI ASIA PTE LIMITED v GUJARAT NRE COKE LIMITED and ARUN KUMAR JAGATRAMKA File number: NSD 437 of 2013 Judge: FOSTER J Date of judgment: 25 March 2013 Date of hearing: 25 March 2013 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 13 Counsel for the Applicant: Mr JRJ Lockhart SC Solicitor for the Applicant: Holman Fenwick Willan Counsel for the Respondents: Mr DR Pritchard SC Solicitor for the Respondents: Gillard Consulting Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 437 of 2013
BETWEEN: COECLERICI ASIA PTE LIMITED
ApplicantAND: GUJARAT NRE COKE LIMITED
First RespondentARUN KUMAR JAGATRAMKA
Second Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
25 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Order 8(a) in Annexure “A” to the Orders made by Foster J on 14 March 2013 be varied by removing the words “the applicant” in line 2 thereof and by replacing those words with the words “the Court”.
2.Order 8(c) in annexure “A” to the Orders made by Foster J on 14 March 2013 be vacated and replaced with the following:
“8.(c)As soon as practicable, but, in any event, by no later than 11.00 am on 2 April 2013, the respondents swear and lodge with the Associate to Foster J (but not file or serve) an affidavit or affidavits setting out the information specified in subpars (a) and (b) above.”
3.Until further order, the contents of all affidavits lodged with the Associate to Foster J pursuant to Order 2 above remain confidential and not be disclosed to any person except to the respondents and their legal representatives and the Associate and Executive Assistant to Foster J.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 437 of 2013
BETWEEN: COECLERICI ASIA PTE LIMITED
ApplicantAND: GUJARAT NRE COKE LIMITED
First RespondentARUN KUMAR JAGATRAMKA
Second Respondent
JUDGE:
FOSTER J
DATE:
25 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 14 March 2013, I made a number of orders upon the application of the applicant. Those orders were made ex parte, although Senior Counsel for the respondents was present in Court when the applicant’s application for interlocutory relief was heard and when orders were made and was given an opportunity to address me in relation to the form of the orders which I intended to make and in relation to other matters. Having heard the applicant and taking into account the legal representatives’ availabilities, I fixed 10.15 am on 2 April 2013 as the return date for a contested hearing of the applicant’s claims for interlocutory relief.
Amongst the orders which I made on 14 March 2013 was Order 8 in Annexure A to those orders. Annexure A comprises Freezing Orders made on 14 March 2013 together with certain other consequential orders. Order 8 was in the following terms:
8. Subject to paragraph 9 you must:
(a)At or before the hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your assets in Australia, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets;
(b)Without limiting paragraph 8(a) above, you should include coal in which you have any right, title or interest or expect to acquire any right, title or interest whether such coal is subject to processing, held in stockpile, in transit or in the supply chain including but not limited to on board any vessel.
(c)Within seven (7) working days after being served with this Order, swear and serve on the applicant an affidavit setting out the above information.
By Interlocutory Application filed on 22 March 2013, the respondents seek an order that Order 8 of Annexure A of the orders made on 14 March 2013 be stayed up to and including 2 April 2013. That application is supported by an affidavit sworn by the solicitor for the respondents on the same day.
On 22 March 2013, immediately prior to the filing of the respondents’ Interlocutory Application, my Chambers was contacted by the solicitor for the respondents who foreshadowed the making of the respondents’ stay application. I was unable to deal with the matter on Friday 22 March 2013. In light of that circumstance, I made an order on that day extending the time for compliance with Order 8 up to and including today in order to enable the respondents’ Interlocutory Application to be dealt with in an appropriate way. I listed the respondents’ Interlocutory Application for hearing before me at 9.15 am this morning (25 March 2013).
Senior Counsel for the respondents has submitted that I should make the stay order sought by the respondents for the following reasons:
(a)The evidence filed on behalf of the applicant does not disclose any disposition of assets or threat of disposition of assets on the part of the respondents. For this reason, when the matter comes before the Court on 2 April next, the Court will not continue the Freezing Orders made on 14 March 2013.
(b)The circumstance that the time for compliance with Order 8 ended prior to 2 April 2013 was a mere happenstance in the sense that, had the Interlocutory Application filed by the applicant been fixed for hearing at an earlier point in time, Order 8 would have more satisfactorily lined up with the return date itself rather than required the respondents to comply more than a week in advance of that return date.
(c)On the evidence, the respondents need 14 days within which to comply with Order 8, in any event.
In support of this last proposition, the solicitor for the respondents said in his affidavit:
11.Further, I am instructed by the First and Second Respondents that the details of their assets held in Australia are involved and of some complexity and that they will require at least 14 days to gather and provide the information required by the Disclosure Order.
12.I am instructed that the process of gathering the documents for the Disclosure Order will require the review of books and records held by the First Respondent at its offices in Kolkata and Russell Vale.
13.I am the solicitor for the First Respondent in Federal Court of Australia proceedings NSD 644 of 2012, proceedings commenced by Armada (Singapore) Pte Ltd (under Judicial Management) to enforce a foreign award. In those proceedings the First Respondent was required to discover similar material to that required by the Disclosure Order. The process of gathering and discovering that material involved three separate tranches of discovery over a period of 7 weeks. I am instructed that there is potential for substantial revisiting of the material discovered on that occasion. Accordingly, I agree with the assessment of the First and Second Respondents that at least 14 days will be required to comply with the Disclosure Order.
Senior Counsel for the applicant submitted that it was important for his client to secure compliance with Order 8 as soon as possible and preferably before the return date of his client’s application for Freezing Orders. However, it became apparent during the course of argument that the applicant does not need compliance with Order 8 in order to press to conclusion its current Interlocutory Application. Its interest in the subject matter of Order 8 is obvious. It is concerned to be properly informed by sworn testimony as soon as possible of the assets held directly or indirectly by the respondents in Australia.
In the end, the only arguable relevance to the applicant’s current Interlocutory Application of details of the particular assets held by the respondents in Australia seems to be that the provision of those details might provide a basis for a more focused form of Freezing Order in due course.
I am at the moment confronted with a practical difficulty. The Court has made an order which, even in its extended form, cannot be complied with. That may have consequences for the respondents were I to leave the order as is.
I think that the respondents should bend their efforts earnestly towards compliance with Order 8 as soon as possible. However, giving due weight to the submissions of Senior Counsel for the respondents as to the strength of the applicant’s case for interlocutory relief, I am of the view that the contents of any affidavit or affidavits prepared and sworn in compliance with Order 8 should be kept confidential at this stage so that, if, as has been submitted by Senior Counsel for the respondents, the Freezing Orders are not continued because they should never have been made, the confidential material will not have been revealed to the applicant or its lawyers prematurely.
Balancing the parties’ interests as best I can, I think that the respondents should comply with the order as soon as possible but by no later than 11.00 am on 2 April 2013. However, I will vary the order so that, in lieu of requiring the respondents to serve the affidavit contemplated by the order, I will require the respondents to lodge with my Associate by 11.00 am on 2 April 2013 the affidavit or affidavits sworn in compliance with Order 8 as varied. I intend to keep that affidavit or affidavits confidential for the time being until I have determined the applicant’s application for a continuation of the Freezing Orders. At that point in time, I will entertain further argument as to disposition of any affidavit or affidavits sworn in compliance with Order 8 as varied.
I also indicate for the benefit of the respondents and their legal representatives that I do expect that the order which I have just made (being a varied form of Order 8) is complied with by the time I have indicated. If it is not complied with by that time, I will consider any application which the applicant may be advised to make in light of such non-compliance, including that I should not allow the respondents to contest the relief sought by the applicant in its Interlocutory Application in the absence of compliance. I will, of course, look at any such application in light of all of the circumstances then obtaining and consider it on its merits at that time.
For the above reasons, I propose to extend compliance with Order 8 (as varied) in the manner indicated in these Reasons for Judgment.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 27 March 2013
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