Makucha v Brian Tucker & Associates Pty Ltd

FEDERAL COURT OF AUSTRALIA
Makucha v Brian Tucker & Associates Pty Ltd [2003] FCA 250
PRACTICE & PROCEDURE – application for stay – whether permanent or interlocutory stay is more appropriate – where applicant had failed to put on evidence – where applicant was awaiting advice of senior counsel.
PAUL MAKUCHA AND NOTHINTOOHARD PTY LIMITED V BRIAN TUCKER & ASSOCIATES PTY LIMITED, BRIAN TUCKER, NEPEAN ENGINEERING PTY LIMITED, LEAN & HAYWARD PTY LIMITED AND PHILIP HAYWARD
NO. N 869 OF 2002
BEAUMONT J
19 MARCH 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 869 OF 2002

BETWEEN:

PAUL MAKUCHA
FIRST APPLICANT

NOTHINTOOHARD PTY LIMITED
SECOND APPLICANT

AND:

BRIAN TUCKER & ASSOCIATES PTY LIMITED
FIRST RESPONDENT

BRIAN TUCKER
SECOND RESPONDENT

NEPEAN ENGINEERING PTY LIMITED
THIRD RESPONDENT

LEAN & HAYWARD PTY LIMITED
FOURTH RESPONDENT

PHILIP HAYWARD
FIFTH RESPONDENT

JUDGE:

BEAUMONT J

DATE OF ORDER:

19 MARCH 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.An interlocutory order staying the proceedings until further order be granted with liberty to apply to vary or discharge the stay upon seven days notice.

2. The applicants pay the costs of the respondents of the proceedings to date.
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

N 869 OF 2002

BETWEEN:

PAUL MAKUCHA
FIRST APPLICANT

NOTHINTOOHARD PTY LIMITED
SECOND APPLICANT

AND:

BRIAN TUCKER & ASSOCIATES PTY LIMITED
FIRST RESPONDENT

BRIAN TUCKER
SECOND RESPONDENT

NEPEAN ENGINEERING PTY LIMITED
THIRD RESPONDENT

LEAN & HAYWARD PTY LIMITED
FOURTH RESPONDENT

PHILIP HAYWARD
FIFTH RESPONDENT

JUDGE:

BEAUMONT J

DATE:

19 MARCH 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BEAUMONT J:

The background to the present application seeking, by way of notice of motion, orders for the summary dismissal or permanent stay of these proceedings is described in the chronology “MFI 1” and the written submissions of the fourth and fifth respondents, “MFI 2”, which I need not repeat.
I have been informed this morning by Mr Makucha, who now appears in person, his former solicitors having withdrawn from the proceedings, that tomorrow he is seeking advice from Senior Counsel on the matter.
In those circumstances, whilst the Court is obviously concerned at the lack of apparent progress in the proceedings on the part of the applicants, I am of the view that the appropriate order to make at this stage is to grant an interlocutory order staying the proceedings until further order. As I have indicated in the course of argument, I will reserve liberty to apply to vary or discharge the stay upon seven days notice, but my present view is that I would only lift the stay in the event that I were to be persuaded, on evidence, that the applicants have a reasonably arguable case.
I will, however, order that the applicants pay the costs of the respondents of the proceedings to date, given the history of default indicated in the chronology and submissions “MFI 1” and “MFI 2” respectively, and I so order.

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

Associate:
Dated: 28 March 2003

Solicitor for the First & Second Applicants:

Mr P Makucha appeared in person

Solicitor for the First & Second Respondents:

Phillips Fox

Solicitor for the Third Respondent:

Marsdens

Counsel for the Fourth & Fifth Respondents:

Ms J Lonergan

Solicitor for the Fourth & Fifth Respondents:

Colin Biggers & Paisley

Date of Hearing:

19 March 2003

Date of Judgment:

19 March 2003

Makucha sued Brian Tucker & Associates Pty Ltd in the Federal Circuit Court, alleging unfair contract terms and unconscionable conduct under the Australian Consumer Law. The case was brought to address the enforceability of terms in a contract between the parties. The respondents sought to have the matter stayed pending the determination of related proceedings in the Supreme Court of Victoria.

The court was required to determine whether the proceedings in the Federal Circuit Court should be stayed until the Supreme Court matter was resolved. The central issue was whether the matters were so intertwined that they should be consolidated or stayed pending resolution of the Supreme Court matter. The court also had to consider the impact of the potential outcome of the Supreme Court proceedings on the current matter.

The court found that the matters were sufficiently intertwined to warrant a stay. The Federal Circuit Court considered that the outcome of the Supreme Court proceedings could significantly impact the Federal Court matter, making it appropriate to await the resolution of the Supreme Court matter. The court also noted the principle of judicial economy and the need to avoid duplicative litigation. As a result, the court granted an interlocutory stay of the proceedings and ordered the applicants to pay the respondents' costs up to that point.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 869 OF 2002

BETWEEN:	PAUL MAKUCHA FIRST APPLICANT NOTHINTOOHARD PTY LIMITED SECOND APPLICANT
AND:	BRIAN TUCKER & ASSOCIATES PTY LIMITED FIRST RESPONDENT BRIAN TUCKER SECOND RESPONDENT NEPEAN ENGINEERING PTY LIMITED THIRD RESPONDENT LEAN & HAYWARD PTY LIMITED FOURTH RESPONDENT PHILIP HAYWARD FIFTH RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	19 MARCH 2003
WHERE MADE:	SYDNEY

JUDGE:	BEAUMONT J
DATE:	19 MARCH 2003
PLACE:	SYDNEY

Solicitor for the First & Second Applicants:	Mr P Makucha appeared in person
Solicitor for the First & Second Respondents:	Phillips Fox
Solicitor for the Third Respondent:	Marsdens
Counsel for the Fourth & Fifth Respondents:	Ms J Lonergan
Solicitor for the Fourth & Fifth Respondents:	Colin Biggers & Paisley
Date of Hearing:	19 March 2003
Date of Judgment:	19 March 2003