Lichford Pty Ltd v Jovan Marble International Pty Ltd

[1995] FCA 669

IN THE FEDERAL COURT OF AUSTRALIA   )
  )
VICTORIA DISTRICT REGISTRY         )       VG 3449 of 1995

)

GENERAL DIVISION                   )

BETWEEN:LICHFORD PTY LTD

(Administrator appointed)

(ACN 052 014 052)

Applicant

AND:JOVAN MARBLE INTERNATIONAL

PTY LTD

Respondent

CORAM:    RYAN J

PLACE:    MELBOURNE

DATE:     18 AUGUST 1995

REASONS FOR JUDGMENT

RYAN J: This matter commenced with an urgent application for an interim injunction which was made and granted on 11 August 1995. It raises some complex questions which in certain respects are novel, going to the proper construction and interaction of various provisions of Part 5.3A of the Corporations Law. In particular, it requires consideration of whether certain steps taken by the respondent, Jovan Marble International Pty Limited ("Jovan"), to gain possession of the subject goods which principally consist of a Terzago bridge masonry cutting saw, amounted to "the exercise of any other power in relation to" those goods within the meaning of s 441F(1) of the Corporations Law.

The relevant steps were preparatory to the taking possession of the saw and other goods by officers of the Sheriff of the County Court, which exercise was interrupted by the injunction
granted by this court on 11 August.  However, on the view which I take of the facts, the resolution of the complex questions of construction referred to above will be necessary to determine only issues going to the costs of this application, and to and the possible liability of the Company or its administrator, Mr Vince, on the undertaking as to damages which prefaced the grant of the injunction on 11 August 1995, as extended on 16 August 1995.

I have reached that conclusion because the facts disclose that Jovan's ownership of the subject property is indisputable and the only impediment to that ownership being exercised by an immediate taking of possession is that arguably raised by Part 5.3A itself. In those circumstances, and on the present state of the material, there is no reason at all why this court should not grant the leave contemplated by s 440C(b) of the Corporations Law, if that be necessary. Nor is there any reason at all why the court should make an order under s 441H(2) precluding Jovan from immediately taken possession of the property. Accordingly, the injunction granted on 11 August 1995 must be dissolved. The costs of both parties of this day will be reserved.

I certify that this and the preceding page are a true copy of the reasons for judgment of his Honour Justice Ryan

Associate:

Date:

Solicitor appearing for

the applicant:                   Mr P Lustig

Counsel for the respondent:      Mr N O'Bryan

Solicitors for the respondent:    McGrath Colman Stewart

Hearing dates:                   11, 16 and 18 August 1995