Eagle Homes Pty Ltd v LED Builders Pty Ltd

[1999] FCA 993

FEDERAL COURT OF AUSTRALIA

Eagle Homes Pty Ltd v LED Builders Pty Ltd [1999] FCA 993

PRACTICE & PROCEDURE – application for a stay of proceedings pending appeal – winding up threatened.

EAGLE HOMES PTY LIMITED V LED BUILDERS PTY LIMITED

N 1034 OF 1999

JUDGE:         BEAUMONT J.
DATE:           19 OCTOBER 1999
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1034 OF 1999

BETWEEN:	EAGLE HOMES PTY LIMITED Applicant
AND:	LED BUILDERS PTY LIMITED Respondent
JUDGE:	BEAUMONT J.
DATE OF ORDER:	19 OCTOBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeals be expedited.

2.   A direction that the parties approach the Registry with a view to the fixing of a hearing date for the appeals.

3.   Liberty reserved to any party to apply to Justice Beaumont in default of agreement in settling the index to the appeal book.

4.   The motion for a stay be stood over to a date to be fixed.

5.   Liberty reserved to any party to restore the motion on such notice, if any, as a Judge may allow. 

6.   Leave granted to appeal from this order and from the order made on 14 October 1999.

7.    Costs reserved.

.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1034 OF 1999

BETWEEN:	EAGLE HOMES PTY LIMITED Applicant
AND:	LED BUILDERS PTY LIMITED Respondent

JUDGE:	BEAUMONT J.
DATE:	19 OCTOBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. This matter was before me last week when I ordered that it stand over to today for the reasons I then gave.  I will not attempt to paraphrase those reasons.  I have, however, today ordered that the appeals be expedited and in connection with the appeal process, I direct that the parties approach the Registry with a view to the fixing of a hearing date for the appeals.

2. On Friday I made an order for written submissions in the usual terms but I would be prepared to revisit that question when the parties have had an opportunity to consider the scope of the appeals and the hearing date for the appeals has been fixed.  I also raised with the parties last week the settling of the index to the appeal book.  I am informed that the parties’ representatives anticipate that they will reach accord in this connection, and of course I will allow them the opportunity to do so.  I will, however, reserve liberty to any party to apply in that connection to myself;  that is to say, in default of agreement, I will settle the index to the appeal book, as I need to be assured that the matters will be ready to proceed at the expedited hearing date.

3. Last week, for the reasons I then gave, I declined to order a stay of proceedings.  I have been informed by Mr Hall, who appears today on behalf of Eagle Homes Pty Limited, that the proceedings in relation to the winding up of his client was, as had been foreshadowed, before the Supreme Court of New South Wales yesterday. The matter was apparently dealt with by both a Registrar and a Master.  Some reasons were given for a decision to stand the matter over in that Court pending the outcome of the stay application in this Court.  Those reasons are not yet available but I anticipate they will soon be produced.  Until I see those reasons, I am not myself in a position to comment upon the matter and do not do so.

4. The present position in this Court is, as I mentioned in my reasons last week, that there is no process of execution pending or threatened here.  Last week, Mr Jackman, appearing for LED on that occasion, conceded that the appeals were arguable, and that concession has not been withdrawn.  If any attempt had been made or foreshadowed to enforce the judgment recovered by LED in this Court by invoking the processes of this Court, the matter may have stood in a different light, but there is no such threat at the moment.

5. In all the circumstances, the appropriate course is that I stand the motion for stay over to a date to be fixed and I reserve to any party the liberty to apply to restore the motion on such notice, if any, as a Judge may allow.  I grant leave to appeal from this order and from the order I made last week.  I reserve all costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             19 October 1999

Counsel for the Applicant:	Mr M R Hall
Solicitor for the Applicant:	Banki Haddock Fiora
Counsel for the Respondent:	Mr I Jackman & Mr M Leeming
Solicitor for the Respondent:	Speed & Stracey
Date of Hearing:	19 October 1999
Date of Judgment:	19 October 1999