Donati v McEwan Ferguson Pty Ltd

[2011] FCA 1276

FEDERAL COURT OF AUSTRALIA

Donati v McEwan Ferguson Pty Ltd [2011] FCA 1276

Citation:		Donati v McEwan Ferguson Pty Ltd [2011] FCA 1276
Parties:		UMBERTO BRUNO VITTORIO DONATI & CARLA DONATI AS TRUSTEES OF THE U & C DONATI SUPERANNUATION FUND v MCEWAN FERGUSON PTY LTD (ACN 082 385 920)
File number:		SAD 193 of 2011
Judge:		BESANKO J
Date of judgment:		7 November 2011
Dates of hearing:	3, 7 November 2011
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	2
Counsel for the Plaintiff:	Ms R Wong
Solicitor for the Plaintiff:	Ouwens Lawyers
Counsel for the Defendant:	Ms A Repasky
Solicitor for the Defendant:	Town & Country Lawyers
The Liquidator:	The Liquidator appeared in person on 3 November 2011

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 193 of 2011

BETWEEN:	UMBERTO BRUNO VITTORIO DONATI & CARLA DONATI AS TRUSTEES OF THE U & C DONATI SUPERANNUATION FUND Plaintiff
AND:	MCEWAN FERGUSON PTY LTD (ACN 082 385 920) Defendant

JUDGE:	BESANKO J
DATE OF ORDER:	7 NOVEMBER 2011
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The orders made by the registrar on 2 November 2011 be set aside.

2.The defendant and Michael Shane Ferguson are jointly and severally liable to pay the costs of the plaintiffs and of the liquidator of the interlocutory application dated 2 November 2011.

3.The plaintiff’s application be referred to the registrar for hearing on a date to be fixed after 16 November 2011.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 193 of 2011

BETWEEN:	UMBERTO BRUNO VITTORIO DONATI & CARLA DONATI AS TRUSTEES OF THE U & C DONATI SUPERANNUATION FUND Plaintiff
AND:	MCEWAN FERGUSON PTY LTD (ACN 082 385 920) Defendant

JUDGE:	BESANKO J
DATE:	7 NOVEMBER 2011
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. I am satisfied that it is appropriate to set aside the orders made by the registrar on 2 November 2011. The non-attendance of the defendant on that day was due entirely to the fault of the defendant’s solicitors. The solicitor put the wrong date in her diary. There are grounds to think that the defendant would not be wound up or not be wound up at this stage.  Those grounds are set out in the affidavits. Having said that, the matter will go back to the registrar and it will be up to her to determine the issue on the evidence then before her.

2. I propose to make an order that the plaintiff’s application be referred to the registrar for hearing on a date to be fixed after 16 November 2011. As I put to the parties in the course of submissions, the circumstances at the time of the next hearing may be such that, in fact, the registrar is persuaded to make similar orders to the orders that she made on 2 November 2011.         

3. My orders are as follows:

   (1)       The orders made by the registrar on 2 November 2011 be set aside.

   (2)       The defendant and Michael Shane Ferguson are jointly and severally liable to pay the costs of the plaintiffs and of the liquidator of the interlocutory application dated 2 November 2011.

   (3)       The plaintiff’s application be referred to the registrar for hearing on a date to be fixed after 16 November 2011.

4. Those are my orders. Two things should be made clear. First, these orders do not give the Court’s imprimatur or approval to any particular transaction by the defendant company. Secondly, they do not involve any judgment on the merits of any claim by the defendant or the director of the defendant that the costs occasioned by this application should, in fact, be paid by the defendant’s solicitors. 

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

Associate:

Dated:        9 November 2011