Hodder, R.R. v Ludwig, W.P

[1990] FCA 421

-- NOT FOR DISTRIBUTION

2UDGMENT No. ...% .2. !.../.?.?L

IN THE FEDERAL COURT OF AUSTRALIA	)
I
NEW SOUTH WALES DISTRICT REGISTRY )	No. N112 of 1990

I N113 of 1990

GENERAL DIVISION )

BETWEEN:  ERROL RAYMOND HODDER & ANOR.

Applicant

AND :	WILLIAM PATRICK LUDWIG &
ORS.

Respondent

17 July 1990

REASONS FOR JUDGMENT

LOCKHART J.

This matter is in the list for the first time after notice has been given to the respondents of the proceeding. The parties have sensibly agreed upon much that concerns the future conduct of the proceedings, but at the commencement of the proceedings today, there were two matters outstanding, and as a result of discussion, there, in essence, is only one matter now remaining for decision, but I shall first deal briefly with the other matter that was in issue.

REOISTRY

It is agreed that there should be as an interlocutory measure, an order against the llth, 12th, and 13th respondents to ensure that moneys that are about to come into their hands following the discharge of a mortgage over a building known as Dunstan House in Brisbane are effectively frozen in their hands - pending the resolution of the case.

16 AUG 1990

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

The order provides for the payment of those moneys into an interest bearing account which should abide the order of the court. The matter in dispute was whether the other respondents should also be restrained from investing, spending, mortgaging or otherwise dealing with those moneys until fuxther order. In my view, once the moneys have come into the possession of the llth, 12th, and 13th respondents who are the relevant trustees of the property in dispute, then order 1 really does all the work that any sensible order could be expected to do.

There is a slight gap in time, however, because once the mortgage is discharged, it is theoretically possible that the moneys would not first go into the possession or control of the llth, 12th, and 13th respondents. That gap has been filled by an undertaking proffered to the court by their counsel and which

I shall refer to in a moment.

The other matter in dispute is not one which it is easy for in essence, the respondents seek an order or direction designed	the court to put in place at this early stage of the matter, but
to maintain the status quo whereby an interim arrangement should continue to enable payments of contributions to be made by the Queensland branch to the head office of the union. The arrangement being one defined before Mr Justice Ryan and possibly
Mr Justice Pincus in earlier proceedings.
There may be good sense in any such arrangements continuing but I know too little about the matter at this stage to comment upon that other than to say this: that if, in the past, an arrangement along the lines mentioned in paragraph 4 of the affidavit of William Patrlck Ludwig of 16 July 1990 has been in place, then provided it is continued without prejudice to the rights of any parties to these proceedings, an easy matter to ensure, then I would have thought there was much to be said for the view that it should continue in place.
But I offer that view simply for the guidance of the parties, because I do not think the court itself should, not withstanding its power to do so in the exercise of its discretion, make any such order at this stage. It is always open, of course, to a party to bring the matter back under liberty to apply, to which I will refer in a moment. Accordingly, at this stage I decline to make any orders in accordance with paragraph 4 of that affidavit.
and the fourteenth respondents, by their counsel to the court, Upon the undertaking of the first to the tenth inclusive, that in the event of any of the moneys mentioned in paragraph 1
of the document titled consent order and initialled by me, dated today and placed with the papers, coming into the possession or control of any of them, they will forthwith pay those moneys to the eleventh, twelfth and thirteenth respondents, the court makes order one in terms of the consent order to which I have referred, but decllnes at this stage to make order two, and the court gives directions in accordance with paragraphs 1 to 10 of a document titled Directions, initialled by me, dated today and placed with the papers.

That includes amending dates in orders 8 and 9 to Wednesday,

26 September 1990.

An ex parte order was made on the application of counsel for the applicants on 13 July relating to the moneys to which reference was made earlier. The intent of the orders made today is that the ex parte orders will now cease to be operative.

I certify that this and the

preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable

Mr. Justice Lockhart.

' I

Associate &Lttg

M: 17 July 1990

Counsel for the Applicants	J. Trew Q.C. and B.D. Hodgklnson
Solicitors for the Applicants :	Turner Freeman
Counsel for the Respondent	J. Batch
Solicitors for the Respondent :	Thornpson, Klng & Partners
Date of Hearing	17 July 1990
Date of Judgment	17 July 1990