Macberry Pty Ltd v Allmake Machinery Pty Ltd

[1989] FCA 416

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) QLD G234 of 1988
GENERAL DIVISION	1

BETWEEN: MACBERRY PTY LTD

Applicant

AND: ALLMAKE MACHINERY PTY LTD

First Respondent

AND: WILLIAM ROBERT KINSELLA

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	24 JULY 1989
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.   the matter be tried on affidavit; oral evidence admitted by leave only;

2.    the matter be set down for trial on Monday 6 and Tuesday 7 November 1989;

3.   the evidence for the applicant be set out in affidavits to be filed on or before 4 September 1989;

4.    the respondents' affidavits be filed and served by 16 October 1989;

5.     the costs of today be costs in the proceedings.

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

- ,

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1 QLD G234 of 1988
GENERAL DIVISION	)

BETWEEN: MACBERRY PTY LTD

Applicant

AND: ALLMAKE MACHINERY PTY LTD

First Respondent

AND: WILLIAM ROBERT KINSELLA

Second Respondent

PINCUS J. 24 JULY 1989

EX TEMPORE REASONS FOR JUDGMENT

In this matter the events in question took place in 1987 and the suit was started in June 1988. It has since proceeded in a desultory fashion until today when Mr Dutney, for the applicant, says that, subject to the usual orders for affidavits or statements, it is ready for trial.

Hs Springer has appeared for the respondents and asked that the matter be put over further and has referred me to affidavits which were filed in March. The affidavits foreshadow an application to make a cross-claim and the purpose of the cross-claim is to transmit any liability which may be held to subsist in the respondents further down the line to the persons from whom they purchased.

MS Springer says, in effect, that it may be convenient to try these two claims together and I can see that. On the other hand, there is a degree of inconvenience associated with it, in that this claim has, it appears, proceeded to the point where it is ready for trial. That has taken over a year. To add the other claim, I suspect, would produce a further delay. There is also the fact that this matter relates to a transaction in Brisbane. The other one is a Melbourne transaction. It may not be terribly convenient, since both the vendor and the purchaser in that sale are from Melbourne, to have it tried with this action.

On the whole, I am not satisfied that I should adjourn the matter any further and I propose to set it down for trial before me on Monday and Tuesday, 6 and 7 November 1989.

The orders will be as follows:

1.    that the matter be tried on affidavit - oral evidence may be admitted by leave only;

1. the dates of trial be Monday and Tuesday 6 and 7 November 1989;

3.    that the evidence for the applicant be set out in affidavits to be filed on or before 4 September 1989;

4 .     that the respondents' affidavits be filed And served by 16 October 1989.

1. I will make the costs of today costs in the proceedings.

!!,2r ,k,,:  z;,:j , l , : fwp ,l L:et!,:,::

,

- .- 3-? , < t,.,~? c c ~ ~ cf i ! ~ rexcns. for

j~rrl:pcnt hcrein of His tionour

Mr. Justice Pincur