Econ Holdings Pty Ltd v Sims Lockwood and Partners

Case [1999] FCA 368

FEDERAL COURT OF AUSTRALIA

Econ Holdings Pty Ltd v Sims Lockwood & Partners [1999] FCA 368

ECON HOLDINGS PTY LTD T/AS BILLBUSTERS HOLDINGS v
SIMS LOCKWOOD & PARTNERS (A FIRM)

N 3025 OF 1999

EMMETT J
26 MARCH 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 3025 OF 1999

IN THE MATTER OF BILLBUSTERS PTY LTD (ACN 081 250 099)

BETWEEN:

ECON HOLDINGS PTY LTD
T/AS BILLBUSTERS HOLDINGS
Applicant

AND:

SIMS LOCKWOOD & PARTNERS (A FIRM)
Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

26 MARCH 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The Application be dismissed with costs.

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 3025 OF 1999

IN THE MATTER OF BILLBUSTERS PTY LTD (ACN 081 250 099)

BETWEEN:

ECON HOLDINGS PTY LTD
T/AS BILLBUSTERS HOLDINGS
Applicant

AND:

SIMS LOCKWOOD & PARTNERS (A FIRM)
Respondent

JUDGE:

EMMETT J

DATE:

26 MARCH 1999

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

  1. This matter came before me on 9 March 1999 after an ex parte application was made on 8 March 1999 by Mr Miles Smith (“Mr Smith”), purporting to act on behalf of two companies known as Billbusters Pty Limited and Econ Holdings Pty Limited. On 8 March 1999, I gave leave for these proceedings to be commenced. An application, expressed to be made under section 474(1) of the Corporations Law, was filed on 9 March 1999 by Econ Holdings Pty Limited (“the applicant”).

  2. On 9 March 1999, I heard argument from Mr Petrucco who is a partner with the Argyle Partnership, a firm of solicitors who act for Sims Lockwood & Partners (“Sims Lockwood”).  Sims Lockwood is the firm of which the liquidator of Billbusters Pty Limited is a member.  On that occasion, Mr Smith said that he wished to join other parties to these proceedings.  Accordingly, I gave leave to the applicant to file an amended application joining such as it was advised of:  Billbusters Pty Limited;  the liquidator of Billbusters Pty Limited;  and Remuneration Planning Corporation Pty Limited as respondents to these proceedings.  I stood the matter over for further directions today.  At the same time, I also directed the applicant to file either a statement of claim or an affidavit setting out its claims against each of those respondents.

  3. Nothing has been filed.  The application does not name a respondent.  It is addressed to:

    “The respondent,
    the Argyle Partnership

    Level 1, 44 Market Street
    Sydney.”

  4. Mr Smith tells me that he intended the respondent to this application to be the firm, Sims Lockwood.  The Argyle Partnership was referred to, he believed, as the address for service of Sims Lockwood.  I have no evidence before me as to the basis for that assertion.  Nevertheless, Mr Petrucco has been here on two occasions representing either his firm, the Argyle Partnership, or the firm Sims Lockwood, if Sims Lockwood is properly a party to the proceedings. 

  5. The application as it presently stands cannot be allowed to proceed.  Mr Smith now tells me that it may be that he will seek to join the landlord of the premises which were previously occupied by Billbusters Pty Limited.  The essence of his claim, as the present application indicates, is for damages for trespass and detinue and possibly for the return of chattels alleged to have been converted.  If that is the nature of the claim, it does not appear to have any federal element which would justify retaining the proceedings in the Federal Court.  In any event, it is not a proceeding which should be brought in the winding-up of Billbusters Pty Limited. 

  6. In the circumstances, I consider that it is appropriate to dismiss the present application with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             26 March 1999

The Applicant was represented by Mr Miles Smith
Solicitor for the Argyle Partnership and Sims Lockwood: The Argyle Partnership
Date of Hearing: 26 March 1999
Date of Judgment: 26 March 1999
Details
AGLC
Econ Holdings Pty Ltd v Sims Lockwood and Partners [1999] FCA 368
Case
[1999] FCA 368
Decision Date

CaseChat Overview and Summary

The matter before the court involved Econ Holdings Pty Ltd, the applicant, and Sims Lockwood and Partners, the respondent. The applicant sought to set aside an order for costs made in their absence. The case was heard in the Supreme Court of New South Wales. The dispute centred around the fairness of an order for costs that had been made against the applicant when they were not present in court, and the applicant's subsequent application to set aside that order.

The court was required to determine whether the applicant's absence from the hearing, due to a misunderstanding about the time and place, was a sufficient ground to set aside the order for costs. The respondent argued that the applicant had an obligation to be present in court and that the misunderstanding did not excuse their absence. The court had to balance the principles of natural justice with the importance of finality in litigation.

The court found that the applicant's absence was not justified by the circumstances and that the order for costs should stand. The court emphasised the need for parties to ensure they are aware of the dates and times of their court appearances. The applicant's argument that the misunderstanding was due to a failure by the respondent to properly communicate the details was rejected. The court concluded that the applicant had not demonstrated a sufficient ground to set aside the order for costs. Consequently, the application was dismissed with costs awarded to the respondent.

Orders

Orders of the court

1. The Application be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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