Ilumba Pty Ltd v Malouf

FEDERAL COURT OF AUSTRALIA

Ilumba Pty Ltd v Malouf [2019] FCA 2095

File number:

QUD 416 of 2019

Judge:

DERRINGTON J

Date of judgment:

9 December 2019

Catchwords:

PRACTICE AND PROCEDURE – application for order for production of document mentioned in a pleading – where statement of claim refers to structure of transaction and proposed entry into a type of agreement – whether reference to prospective entry into type of agreement falls within “document mentioned in a pleading” in r 20.31

Legislation:

Federal Court of Australia Act 1976 (Cth), s 23

Federal Court Rules 2011 (Cth), r 20.31

Cases cited:

Construction Forestry Maritime Mining and Energy Union v McConnell Dowell Constructors (Aust) Pty Ltd [2019] FCA 1376

King v GIO Holdings [2001] FCA 1487

Date of hearing:

9 December 2019

Registry:

Queensland

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Category:

Catchwords

Number of paragraphs:

19

Counsel for the Applicant:

Mr J Stoljar SC with Mr J Hynes

Solicitor for the Applicant:

King & Wood Mallesons

Counsel for the First and Third Respondents:

Mr SJ Webster

Solicitor for the First and Third Respondents:

Stoddart Legal

Counsel for the Second and Fourth Respondents:

Mr T Flaherty

Solicitor for the Second and Fourth Respondents:

Michael Flaherty Solicitor

ORDERS

QUD 416 of 2019

BETWEEN:

ILUMBA PTY LTD

Applicant

AND:

IAN GERARD MALOUF

First Respondent

ADAM CARTWRIGHT INVESTMENTS PTY LTD ATF THE ADAM CARTWRIGHT INVESTMENTS TRUST

Second Respondent

MALOUF GROUP PTY LTD

Third Respondent

ADAM THOMAS CARTWRIGHT
Fourth Respondent

JUDGE:	DERRINGTON J
DATE OF ORDER:	9 DECEMBER 2019

THE COURT ORDERS THAT:

1.The interlocutory application filed by the second and fourth respondents on 27 November 2019 be dismissed.

2.The second and fourth respondents pay the applicant’s costs of the interlocutory application, to be agreed or taxed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

1. The application before the Court today is for the production of documents which the second and fourth respondents submit are referred to in the statement of claim. The application is made under r 20.31 of the Federal Court Rules 2011 (Cth) or, alternatively, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth).

2. The proceedings were commenced on 5 July 2019.  An amended statement of claim was filed on 14 August 2019.  The action is against four respondents.  They are two individuals and two companies.  For convenience, I will refer to the first and third respondents as the “Malouf interests” and to the second and fourth respondents as the “Cartwright interests”. 

3. The applicant, Ilumba Pty Ltd (Ilumba), purchased a pharmacy in Rockhampton from a partnership consisting of the first respondent and the second respondent.  Both the Malouf interests and the Cartwright interests had some participating involvement in it.  The purchase price was around $14.7 million, and together with stock of about $738,000, the total purchase price was in the vicinity of $15.2 million.  The sale…