London City Equities Ltd v Penrice Soda Holdings Ltd (No 4)

[2013] FCA 64

FEDERAL COURT OF AUSTRALIA

London City Equities Ltd (No 4) v Penrice Soda Holdings Ltd [2013] FCA 64

Citation:		London City Equities Ltd (No 4) v Penrice Soda Holdings Ltd [2013] FCA 64
Parties:		LONDON CITY EQUITIES LTD v PENRICE SODA HOLDINGS LTD
File number:		NSD 1841 of 2010
Judge:		ROBERTSON J
Date of judgment:		6 February 2013
Catchwords:		COSTS – whether plaintiff should pay the defendant’s costs of the interlocutory application
Legislation:		Corporations Act 2001 (Cth) s 247A
Date of hearing:	6 February 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	4
Solicitor for the Plaintiff:	Ms A Rose of Watson Mangioni Lawyers Pty Limited
Counsel for the Defendant:	Mr EC Muston
Solicitor for the Defendant:	Kelly & Co

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1841 of 2010

BETWEEN:	LONDON CITY EQUITIES LTD Plaintiff
AND:	PENRICE SODA HOLDINGS LTD Defendant

JUDGE:	ROBERTSON J
DATE OF ORDER:	6 FEBRUARY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Subject to Order 1 made on 12 December 2012, the defendant’s interlocutory application dated 30 November 2012 be otherwise dismissed.

2.The plaintiff pay the defendant’s costs of the defendant’s interlocutory application.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1841 of 2010

BETWEEN:	LONDON CITY EQUITIES LTD Plaintiff
AND:	PENRICE SODA HOLDINGS LTD Defendant

JUDGE:	ROBERTSON J
DATE:	6 FEBRUARY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a matter in which I made orders on 12 December 2012 that in the circumstances that then arose, an affidavit be sworn by the plaintiff deposing to whether or not, in effect, the plaintiff had complied with orders previously made, which required the return of documents made available under orders made still earlier under s 247A of the Corporations Act 2001 (Cth).

2. The matter in dispute between the parties this morning, that affidavit having been filed, is who should bear the costs of the defendant’s interlocutory application.  Since the defendant accepts the plaintiff’s affidavit as to the whereabouts of the documents, the appropriate order otherwise is that the interlocutory application be dismissed, that is, otherwise than in relation to the order I made on 12 December 2012.

3. In my view, in the events that have happened, particularly the filing of the interlocutory application on 30 November 2012 and the correspondence that thereafter ensued, including the letter of 10 December 2012 from the defendant’s solicitors to the plaintiff’s solicitors, the appropriate order is that the plaintiff should pay the defendant’s costs of the interlocutory application.  The defendant was successful in the interlocutory application.  The interlocutory application was, in my view, reasonably filed, and an offer was made in the letter of 10 December 2012, which was, in substance, the same as the orders in fact made by me on 12 December 2012.

4. The order I make disposing of the interlocutory application is that, subject to the orders of 12 December 2012, the defendant’s interlocutory application be otherwise dismissed, and the plaintiff pay the defendant’s costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:        11 February 2013