Collendina Pty Ltd v Clarkekann (NSW) Pty Limited

[2010] FCA 923

FEDERAL COURT OF AUSTRALIA

Collendina Pty Ltd v Clarkekann (NSW) Pty Limited [2010] FCA 923

Citation:			Collendina Pty Ltd v Clarkekann (NSW) Pty Limited [2010] FCA 923
Parties:			COLLENDINA PTY LTD v CLARKEKANN (NSW) PTY LIMITED ACN 127 412 131
File number(s):			NSD 760 of 2010
Judge:			GRAHAM J
Date of judgment:			23 August 2010
Date of hearing:	23 August 2010
Place:			Sydney
Division:			GENERAL DIVISION
Category:			No catchwords
Number of paragraphs:			4
Counsel for the Plaintiff:			A C Harding
Solicitor for the Plaintiff:	Jackson Lalic Lawyers
Counsel for the Defendant:	N Obrart
Solicitor for the Defendant:	Clarkekann (NSW) Pty Limited

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 760 of 2010

BETWEEN:	COLLENDINA PTY LTD Plaintiff
AND:	CLARKEKANN (NSW) PTY LIMITED ACN 127 412 131 Defendant

JUDGE:	GRAHAM J
DATE OF ORDER:	23 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT

1.Grants leave to the Plaintiff to amend the Originating Process by inserting “Pty Limited” in the name of the Defendant after “(NSW)”.

AND THE COURT ORDERS THAT:

2.The Originating Process filed by the Plaintiff on 24 June 2010 be dismissed without further order if the Plaintiff fails to pay into Court the amount of $5,000 by 4 pm on 24 August 2010.

3.Subject to the earlier dismissal of the proceedings in accordance with order 2 above, the Originating Process over to 30 August 2010 at 10:15 am before the Docket Judge.

4.The Plaintiff pay the costs of the Defendant of the adjournment on 2 August 2010 fixed in the amount of $2,500, that such costs be payable forthwith and that payment be effected by a payment into Court in accordance with order 2 above. 

5.The Plaintiff pay the costs of the Defendant of the adjournment today fixed in the amount of $2,500, such costs to be payable forthwith and that payment be effected by a payment into Court in accordance with order 2 above. 

6.These orders may be entered forthwith.

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 760 of 2010

BETWEEN:	COLLENDINA PTY LTD Plaintiff
AND:	CLARKEKANN (NSW) PTY LIMITED ACN 127 412 131 Defendant

JUDGE:	GRAHAM J
DATE:	23 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter presently before the court is a matter of Collendina Pty Limited against Clarkekann (NSW) Pty Limited ACN 127 412 131.  The proceedings were commenced on 24 June 2010.  The application was brought pursuant to s 459G and/or s 459J of the Corporations Act 2001 (Cth). The matter has been before the docket judge, Jacobson J, on more than one occasion. Until 21 July 2010, the plaintiff was represented by Slater & Gordon solicitors. That firm ceased to act for the plaintiff on that day.

2. When the matter was before the Court on 2 August 2010, it would appear that a director of Collendina Pty Limited communicated with the Court by facsimile seeking an adjournment of the proceedings, which were listed for hearing on that day.  I am informed that the docket judge had the advantage of submissions from Ms Obrart, who appeared for the defendant, and that the matter occupied some one hour of hearing time on that day.  The order which his Honour made was as follows:

   ‘1.The hearing of the matter be adjourned to Monday 23 August 2010 at 10.15 am, conditional upon the plaintiff paying into Court the amount of $2,500 by Monday 16 August 2010, being the defendant’s costs thrown away by the adjournment of the proceeding which was fixed for hearing on 2 August 2010.’

3. When the matter was called this morning, Mr Harding of counsel announced his appearance for the defendant, instructed by a firm of solicitors known as Jackson Lalic.  Mr Ryan Kim of Jackson Lalic has given an undertaking to the Court to cause a Notice of Appearance for the plaintiff, Collendina Pty Limited, to be filed by close of business today.  Mr Harding has asked the Court to further adjourn the matter, given the fact that his instructing solicitor only received instructions on Friday last, 20 August.

4. Whilst his Honour’s order may have contemplated the dismissal of the proceedings absent the payment of the amount of $2,500, it seems to be that the proceedings are technically still on foot.  I have indicated to the plaintiff’s counsel that I am disposed to allow an adjournment for a short period of time, conditioned upon the payment of the amount previously ordered, together with a further amount for costs thrown away by the adjournment today, and have indicated that I would only be disposed to allow the adjournment if a self-executing order was made for the dismissal of the proceedings in the absence of the payment of the requisite amounts of money by way of costs, by 4 pm on Tuesday, 24 August.  Counsel for the plaintiff has indicated that he has instructions to submit to such an order.  The docket judge will, I am informed, be available to deal with the application on Monday, 30 August. I will stand the matter over to his Honour’s list at 10.15 am on that day. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        25 August 2010