Ebbage, J.J. v Stout, K.J

[1991] FCA 342

JUDGMENT NO. ... l?!. ........ 1, l :

> IN THE FEDERAL COURT OF AUSTRALIA ) NO. QG 3004 of 1991

DUEENSLAND DISTRTCT REGTSTRY	1	1
GENERAL DIVISION	1

BETWEEN: JOHN JOSEPH EBBAGE

Applicant

AND: KENNETH J. STOUT

First Respondent

AND: AUSTRALIAN SECURITIES COMMISSION

Second ~espondent

MINUTES OF ORDER

21 J U N 1991

JUDGE MAKING ORDER:  PINCUS J.

FEDERAL COURT OF
AUSTRALIA

DATE OF ORDER:	8 MAY 1991	PRINCIPAL
REGISTRY  l
WHERE MADE:	BRISBANE	1 .
k .
THE COURT ORDERS THAT:	1.
I  i

1.   The application to join the companies for whom

Messrs Jackson and O'Shea appear, that is, Reef	[ .
Ventures Pty. Ltd. and Reef Management Pty. Ltd. be	I ;
granted.	!

2.    The application by Mr. Batch to join the necessary parties to make a cross-claim against the liquidator be granted.

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3. The Registrar of Business Names be joined as a I

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

respondent, with provision for his pleading.	!	-
t	L
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NOTE :

IN THE FEDERAL COURT OF AUSTRALIA	No. QG 3004 of 1991
OUEENSLAND DISTRICT REGISTRY	l
GENERAL DIVISION

BETWEEN: JOHN JOSEPH EBBAGE

Applicant

AND: KENNETH J. STOUT

First Respondent

AND: AUSTRALIAN SECURITIES COMMISSION

Second Respondent

CORAM: PINCUS J.

PLACE: BRISBANE

- DATE: 0 MAY 1991

EX TEMPORE REASONS FOR JUDGMENT

In this matter an application for joinder is made on behalf of a company which claims it purchased the name, and an associated company which is carrying on business in the name in question, "Great Adventures". The application seeks declaratory relief and consequential directions; the general

effect of what is sought is perhaps epitomized in order number 5 :

"That the AUSTRALIAN SECURITIES COMMISSION amend its records in accordance with the Declarations herein".

It is patently contemplated that name is to be changed back.

~t seems to me clear beyond any serious argument that an order in that form would affect the interests of one	I
I:
or both of the purchaser and the company which is now using	I
the name "Great Adventures". Counsel for the applicant, Mrs. Wolfe, takes the point that the purchaser's position may be somewhat different, and if that turns out to be so, then

perhaps the purchaser can be deleted. But it does not seem to ) ,

me to make any.significant difference; they are represented by the same solicitors and counsel, so it will not make any difference as to costs. I think they might as well both be joined.

I will accede to the application to join the two companies for whom Messrs Jackson and O'Shea appear. They are Reef Ventures Pty Ltd and Reef Management Pty Ltd.

The other questions which arise are, firstly, whether or not the State Registrar should be joined. In effect, counsel for the applicant asked me to determine whether they need to join that party. I do not propose to do	that. It seems to me to be primarily a matter for the
applicant, unless the Registrar asks to be joined.
The other, more difficult, problem is whether or not the case should be expanded in the way which Mr. Batch suggests. That is, he foreshadows an application for leave to join the necessary parties to make a cross-claim against the liquidator, to require the liquidator in effect to

co-operate in completing the transaction into which his client entered. Although that does seem to me to be inconvenient in the sense that it expands the scope of the proceeding, still in accordance with the general rule that all the matters which are really in issue should if possible be determined in the one proceeding, I propose to accede to that.

What I would like counsel to do is to discuss the matter now and to try to agree on some directions. The case will have to be pleaded. If you can agree on some directions, would you let me know. If you cannot, then I will determine the directions myself.

What I have in mind is that the cross-claim which

Mr. Batch foreshadowed can be made in these proceedings, and

the whole matter should be able to be tried, one would hope, within the next few weeks. Although it does not seem to be desperately urgent, it is reasonably urgent.

I will not be able to try it within the next few

weeks, but I think that a judge can be obtained to try it at
that time.

I order that the Registrar of Business Names be joined as a respondent, with provision for his pleading.

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I c e r t i f y t h a t the three preceding pages are a true copy o f t h e reasons f o r

judgment here in o f h i s

Honour M r . J u s t i c e Pincus

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Associate