Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd
[2008] FCA 1150
•6 August 2008
FEDERAL COURT OF AUSTRALIA
Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2008] FCA 1150
CONTEMPT – alleged breach of Court orders – dispute settled subsequent to hearing – Notice of Motion seeking order that respondents are in contempt of Court for breaching interlocutory freezing orders – further negotiation occurred subsequent to hearing of Notice of Motion – parties entered into Deed of Settlement settling the matter after hearing but before judgment – in light of settlement no utility in a practical sense in pronouncing judgment on the committal application – Notice of Motion dismissed
Federal Court Rules
LIFETIME INVESTMENTS PTY LTD (A ST VINCENT AND THE GRENADINES COMPANY NO 5479 IBC 2000) v COMMERCIAL (WORLDWIDE) FINANCIAL SERVICES PTY LTD (ACN 053 354 706) (IN LIQUIDATION), WILLIAM DAVID WALLADER, JILL MARGARET WALLADER, COLINTON STATION PTY LTD (FORMERLY KNOWN AS DAIRY WORLD PTY LTD) (ACN 092 877 953) and D & J WALLADER PTY LTD (ACN 087 645 627)
QUD 60 OF 2005
SPENDER J
6 AUGUST 2008
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 60 OF 2005
BETWEEN:
LIFETIME INVESTMENTS PTY LTD (A ST VINCENT AND THE GRENADINES COMPANY NO 5479 IBC 2000)
ApplicantAND:
COMMERCIAL (WORLDWIDE) FINANCIAL SERVICES PTY LTD (ACN 053 354 706) (IN LIQUIDATION)
First RespondentWILLIAM DAVID WALLADER
Second RespondentJILL MARGARET WALLADER
Third RespondentCOLINTON STATION PTY LTD (FORMERLY KNOWN AS DAIRY WORLD PTY LTD) (ACN 092 877 953)
Fourth RespondentD & J WALLADER PTY LTD (ACN 087 645 627)
Fifth Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
6 AUGUST 2008
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The Amended Notice of Motion filed on 18 March 2008 is dismissed.
2.There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 60 OF 2005
BETWEEN:
LIFETIME INVESTMENTS PTY LTD (A ST VINCENT AND THE GRENADINES COMPANY NO 5479 IBC 2000)
ApplicantAND:
COMMERCIAL (WORLDWIDE) FINANCIAL SERVICES PTY LTD (ACN 053 354 706) (IN LIQUIDATION)
First RespondentWILLIAM DAVID WALLADER
Second RespondentJILL MARGARET WALLADER
Third RespondentCOLINTON STATION PTY LTD (FORMERLY KNOWN AS DAIRY WORLD PTY LTD) (ACN 092 877 953)
Fourth RespondentD & J WALLADER PTY LTD (ACN 087 645 627)
Fifth Respondent
JUDGE:
SPENDER J
DATE:
6 AUGUST 2008
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is the hearing of an Amended Notice of Motion filed on 18 March 2008 by the applicant for an order that, amongst other things, the first and second respondents be committed to prison for contempt pursuant to O 40 r 5 of the Federal Court Rules. The application asserted that the first and second respondents were in contempt of orders made by Greenwood J on 28 April 2006, Spender J on 18 April 2007, and Spender J on 15 November 2007.
The Amended Notice of Motion also sought orders consequential on any finding of contempt. As Mr Catlin of Counsel for the applicants submitted, “(T)he orders we do seek are not simply in the nature of criminal contempt penalties. … We do seek the restitution of the funds from the cattle sales and the Davis mortgage.”
The circumstances behind these asserted breaches of the Court’s orders related to the sales of cattle, which had been the subject of Court orders; the giving of a mortgage over property to a couple, Mr and Mrs Davis; the attempted sale of property the subject of Court orders; and the execution of an instrument of mortgage in favour of one Mr de Saint Quentin.
Extensive affidavit material was filed by the parties to the Amended Notice of Motion seeking committal for contempt. A hearing of the Amended Notice of Motion occurred on 2 April 2008. In addition to the affidavit evidence, oral evidence was called and cross-examination of Mr Wallader occurred on that date. At the conclusion of the oral hearing, the Court reserved its decision in relation to the Amended Notice of Motion.
While judgment on that Amended Notice of Motion was reserved, there were negotiations between the parties and on 6 June 2008, Harwood Andrews Lawyers, the solicitors on behalf of the applicant and the moving party seeking orders for committal for contempt, wrote to the District Registrar saying, amongst other things:
We confirm the parties entered into a deed of settlement on 2 May 2008 relating to the above proceeding.
The proceeding is now considered settled amongst the parties. However, the parties have not agreed to discontinue the proceeding given there are various tasks to complete and accordingly the applicant will not be filing and serving a notice of discontinuance.
Subsequent to the above correspondence by the parties with Deputy District Registrar Belcher of the Queensland Registry, the Court wrote to the solicitors for the parties seeking clarification of their position in relation to the Amended Notice of Motion.
In particular, each of the solicitors for the parties was asked:
Specifically, I would appreciate if the parties could tell me whether the settlement negates the need for Justice Spender to decide the Notice of Motion; that is, whether or not this dispute has been settled and is now moot in light of the broader settlement.
The solicitor for the respondents to the Amended Notice of Motion wrote informing the Court:
Yes, the settlement negates the need for Justice Spender to decide the Notice of Motion.
However, the solicitor for the applicant responded indicating:
Our clear understanding is that proceeding QUD 60 of 2005 has been settled.
The applicant agreed it would not make any further submissions in the Federal Court on the contempt Notice of Motion. However, the parties acknowledged in the settlement that they could not finally resolve the contempt Notice of Motion as it was a matter within the discretion of the Federal Court and they also acknowledged the Federal Court may still give judgment on the contempt Notice of Motion.
The solicitor for the respondents later reaffirmed his view that “the settlement between the parties negates the need for Justice Spender to decide the Notice of Motion.” The solicitor indicated, however, that:
… if his Honour still wishes to do so, then, of course, he may do so as it is a matter within the discretion of the Court.
The solicitor for the respondents further indicated:
However, the matter is settled as between the parties and all the terms of that settlement are recorded in a Settlement Deed that is binding on the parties.
Having regard to the above communications, in my view, there is no utility in proceeding to determine a matter which has been overtaken by the further negotiations and agreements reached between the parties. It is not the function of the Court to give advisory opinions on disputed questions of fact, where there is no current controversy concerning what had previously been claimed by way of relief in a dispute between the parties. The Amended Notice of Motion, in addition to orders of committal, sought consequential orders concerning the proceeds of cattle sales and the restitution of funds obtained by the grant of the Davis mortgage, matters which, I infer from the correspondence, are caught by the settlement agreement.
For these reasons, it is not appropriate to make any order on the Amended Notice of Motion. The Amended Notice of Motion seeking that relief is therefore dismissed. In those circumstances it is appropriate that the Court make no order as to costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate:
Dated: 6 August 2008
Counsel for the Applicant: Mr J Catlin Solicitor for the Applicant: Harwood Andrews Lawyers Counsel for the Respondents: Mr R Myers Solicitor for the Respondents: Tucker & Cowen Solicitors
Date of Hearing: 2 April 2008 Date of Judgment: 6 August 2008
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