Makucha v Brian Tucker & Associates Pty Ltd

[2003] FCA 250

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:

1. 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. 

2. I have been informed this morning by Mr Makucha, who now appears in person, his former solicitors having withdrawn from the proceedings, that tomorrow he is seeking advice from Senior Counsel on the matter.

3. 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.

4. 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