Magarditch v ANZ Banking Group Ltd

[1999] FCA 352

FEDERAL COURT OF AUSTRALIA

Magarditch v ANZ Banking Group Ltd [1999] FCA 352

GERIER AGOP MAGARDITCH & ORS v ANZ BANKING GROUP LIMITED & ANOR

NG 1065 OF 1997

HELY J
24 MARCH 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1065 OF 1997

BETWEEN:	GERIER AGOP MAGARDITCH & ORS Applicant
AND:	ANZ BANKING GROUP LIMITED & ANOR Respondent
JUDGE:	HELY J
DATE OF ORDER:	24 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Hearing of the notice of motion filed by the applicants on 16 March 1999 be adjourned to a date to be fixed as soon as practicable after the disposition of the appeal to the Full Court from the decision of Einfeld J pronounced on 29 January 1999.

2.Costs of today be reserved.

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	NG 1065 OF 1997

BETWEEN:	GERIER AGOP MAGARDITCH & ORS Applicant
AND:	ANZ BANKING GROUP LIMITED & ANOR Respondent

JUDGE:	HELY J
DATE:	24 MARCH 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. There is before the court a notice of motion taken out by Mr Sourian in which he seeks leave to further amend the statement of claim against the first and second respondents, and in which he seeks leave to join the State of New South Wales as a third respondent.  He also seeks an order that the hearing of the motion be expedited.

2. Counsel for the first and second respondents oppose the hearing of this motion today.  They do so upon the basis that the matter was last before Einfeld J on 29 January 1999 when, after what appears to be a very lengthy and detailed judgment, his Honour did two things.  First, he ordered that the motion that leave be granted to Mr Sourian to act on behalf of the third applicant, Magic Australia Pty Limited, in prosecuting the claims against the first and second respondents made in the further amended statement of claim, be dismissed.  Second, he ordered that the motion that the court inquire into the conduct of the second respondent as liquidator of the third applicant, and give leave to amend the further amended statement of claim to include the request for an inquiry, also be dismissed.

3. I am informed, and Mr Sourian agrees, that he has lodged an appeal from his Honour's decision which is due to be heard in the May sittings of the Full Court. The amendments sought to be introduced by the notice of motion allege wrongful conduct between at least the first and second respondents of a conspiratorial character designed to damage Magic Australia Pty Limited.  It seems to me that whilst ever Einfeld J's order refusing Mr Sourian liberty to represent Magic Australia Pty Limited stands, it would not be consistent with that order for amendments to be made that tacitly represented or tacitly assumed an entitlement on the part of Mr Sourian to represent the company, contrary to the terms of his Honour's order.

4. I therefore think it is appropriate that I should accede to the requests of counsel for the first and second respondents not to hear this motion today but to adjourn it to be heard on a date to be appointed as soon as practicable after the disposition of the Full Court appeal.  As the matter has been in Einfeld J's docket and received lengthy consideration by him, it would probably be appropriate for the motion to be restored to his Honour's list.

5. I therefore propose to order that the notice of motion be adjourned to a date to be fixed after the disposition of Mr Sourian's appeal to the Full Court from the decision of Einfeld J pronounced on 29 January 1999.  In the circumstances, I think it appropriate that the costs of today's application should be reserved.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             24 March 1999

1st and 2nd Applicants	Represented by J Sourian
Solicitor for the 1st Respondent:	C Bavin
Solicitor for the 2nd Respondent	J G Harrowell
Solicitor for the putative 3rd Respondent	G Laughton
Date of Hearing:	24 March 1999
Date of Judgment:	24 March 1999