Lymlind Pty Ltd and Ors v Parianos, George and Anor Parianos George v Parianos, Anagyros and Anor

[1997] FCA 661

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  No. NG 336 of 1994
)
GENERAL DIVISION	)

BETWEEN:	LYMLIND PTY LTD First applicant
ANAGYROS PARIANOS Second applicant
MARGUERITA PARIANOS Third applicant
AND:	GEORGE PARIANOS First respondent
SANTANA COFFEE & TEA PTY LTD Second respondent
AND BETWEEN:	GEORGE PARIANOS Cross-claimant
AND:	ANAGYROS PARIANOS AND MARGUERITA PARIANOS Cross-respondents

JUDGE:	BEAUMONT J
PLACE:	SYDNEY
DATED:	11 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Judgment for the applicants against the first respondent for Swiss Francs 1,336,584.98 together with interest at the daily rate of Swiss Francs 172.77 from 11 July 1997 until payment.

1. Suspend the operation of order 1 up to and including 16 July 1997 reserving liberty to any party to apply in this connection upon giving twenty-four (24) hours written notice.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)   No. NG 336 of 1994
)
GENERAL DIVISION	)

BETWEEN:	LYMLIND PTY LTD First applicant
ANAGYROS PARIANOS Second applicant
MARGUERITA PARIANOS Third applicant
AND:	GEORGE PARIANOS First respondent
SANTANA COFFEE & TEA PTY LTD Second respondent
AND BETWEEN:	GEORGE PARIANOS Cross-claimant
AND:	ANAGYROS PARIANOS AND MARGUERITA PARIANOS Cross-respondents

JUDGE:	BEAUMONT J
PLACE:	SYDNEY
DATED:	11 JULY 1997

REASONS FOR JUDGMENT (ON MAKING OF FURTHER ORDERS)

In this matter I made orders on 12 July 1995 for the reasons I then gave.  Order 2 of the orders then made was a declaratory order declaring the respective rights and obligations of the parties, in principle, on the matters there described.  In the intervening period the parties and their representatives and their expert accounting advisers have exchanged, compared and verified material dealing with the accounts required to be undertaken pursuant to the terms of that declaratory order.  The matter has been before me on several subsequent occasions but, subject to one point of verification, which I will mention shortly, the position has now been reached where the first respondent has indicated that he does not wish to be heard further on the question.  (I should note, in this connection, that one of the orders made on 12 July 1995 was to grant leave to appeal from that judgment).  I have been taken to some of the accounting material for the purpose of being satisfied as to the authenticity of the documentation issued by the bank in Switzerland.  I am so satisfied.  In the result, the applicants now seek judgment against the first respondent for Swiss francs 1,336,584.98, together with interest at the daily rate of Swiss francs 172.77 from 11 July 1997 until payment.  Subject to the one reservation previously mentioned, the first respondent now accepts that this is an accurate calculation of the amount due in accordance with my previous reasons.

The reservation advanced on behalf of the first respondent arises out of what is now conceded to be an error, of a relatively small amount, made in the calculations of profit on behalf of the applicants.  The amount in question is in the order of $A20,000.  That error having been detected by the applicants’ expert advisers, but only recently communicated to the first respondent’s legal representatives, it is accepted on behalf of the applicants that the first respondent’s experts should have a reasonable opportunity to consider that matter.  The parties have concurred with my suggestion that, whilst judgment should now be entered in the amount together with the interest previously mentioned, the operation of this order should be suspended up to and including 16 July 1997;  reserving liberty to any party to apply in this connection upon giving 24 hours’ written notice, in the event that the first respondent wishes to agitate any aspect of the correction recently made to the amount claimed on behalf of the applicants.

One further matter should be mentioned.  In the draft minutes of order submitted this morning on behalf of the applicants, the applicants first sought, in addition to judgment in the amount, together with interest, previously mentioned, a declaratory order that:

"...conformably with the order made 12 July 1995 and after making all proper allowances, the balance, including interest up to and including 11 July 1997 that the first respondent is liable to pay the second and third applicant, is Swiss francs 1,336,584.98.”

Counsel on behalf of the first respondent objected to the making of a declaratory order in those terms pointing, in particular, to the words "after making all proper allowances".  Counsel indicated that it was his client's instructions that the first respondent did not accept that all accounts between these parties had necessarily been finally settled.  Counsel mentioned certain bank accounts in this connection.  This matter was debated before me in the context of the orders that should now be made and, of course, I express no view upon the merit, if any, of any such claim that the first respondent may be advised to bring.  However, I did indicate to the parties that I saw no need to make the declaratory order sought by the applicants, in any event;  and that the appropriate form of relief now to be granted to the applicants was to enter judgment in the amount mentioned together with interest.  I did further indicate, however, to counsel for the first respondent that, if any of the dealings, the subject of these bank accounts to which I have referred, should be sought to be the subject of, as I saw it, a re-opening of the present accounts, I would not allow that re-opening, given the considerable lapse of time that has occurred and given further the considerable attention devoted to the present accounts by the parties, their representatives, their expert advisers and several Registrars of this Court.  Counsel for the first respondent asked that it be noted that he did not accept that his client would be estopped, or otherwise precluded, from raising any question in relation to those bank accounts in subsequent proceedings.

At this stage, of course, such a question is hypothetical and I say nothing about it.  I did, however, indicate to counsel for the first respondent that I would, in giving these short reasons for the making of the orders which I am now about to make, formally record not only his reservation in respect of the error to which I have referred, but also his claim that, in the event of subsequent proceedings being instituted in respect of the bank accounts which he highlighted today, his client was not, by reason of the making of the present orders, precluded from raising the question.

I make orders in accordance with the short minutes initialled by me this day.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:            11 July 1997

Counsel for the Applicants:	E Strasser
Solicitor for the Applicants:	Schweizer & Co
Counsel for the Respondents:	R Parsons
Solicitor for the Respondents:	Norbert Lipton & Sankey
Date of Hearing:	11 July 1997
Date of Judgment:	11 July 1997