FEDERAL COURT OF AUSTRALIA
Ottoway Engineering Pty Ltd v Westpac Banking Corporation (No 2)
[2017] FCA 39
File number: SAD 90 of 2016 Judge: BESANKO J Date of judgment: 30 January 2017 Date of publication of reasons: 31 January 2017 Catchwords: PRACTICE AND PROCEDURE – application for joinder by a non-party to the proceeding – whether non‑party’s interest is directly affected by injunction – commercial as opposed to legal interest – whether rights of chargee directly affected by injunction
PRACTICE AND PROCEDURE – application for dissolution of injunction – delay in making application seeking dissolution of an injunction – whether grounds for dissolution of injunction shownLegislation: Federal Court Rules 2011 (Cth) rr 1.32, 9.05 Cases cited: Clough Engineering Ltd v Oil and Natural Gas Corporation Ltd and Others [2008] FCAFC 136; (2008) 249 ALR 458
Cretanor Maritime Co Ltd v Irish Marine Management Ltd [1978] 1 WLR 966
John Alexander’s Clubs Pty Limited and Another v White City Tennis Club Limited [2010] HCA 19; (2010) 241 CLR 1
Kadam v MiiResorts Group 1 Pty Ltd [2016] FCA 1205
News Limited v Australian Rugby Football League Limited and Others (1996) 64 FCR 410
Ottoway Engineering Pty Ltd v Westpac Banking Corporation [2016] FCA 635
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Simic v New South Wales Land and Housing Corporation [2016] HCA 47
State of Victoria and Another v Sutton and Another (1998) 195 CLR 291
Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98
Wood Hall Limited v The Pipeline Authority and Another (1979) 141 CLR 443
Date of hearing: 19 January 2017 Registry: South Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: Mr N Floreani Solicitor for the Applicant: Mardi Conduit Counsel for the Respondent: Mr M Hoffman QC Solicitor for the Respondent: HWL Ebsworth Lawyers Counsel for the Prospective Respondents: Mr D Solomon Solicitor for the Prospective Respondents: Solomon Brothers ORDERS
SAD 90 of 2016 BETWEEN: OTTOWAY ENGINEERING PTY LTD (ACN 125 531 428)
Applicant
AND: WESTPAC BANKING CORPORATION (ABN 33 007 457 141)
Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
30 JANUARY 2017
THE COURT ORDERS THAT:
1.The interlocutory application issued by ECAP Finance Pty Ltd, Troy James Millen and Kelly Jean O’Brien (“the applicants for joinder”) dated 19 December 2016 be dismissed.
2.The respective applications of the applicant and the respondent against the applicants for joinder for the costs of the application be adjourned to a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
Introduction
This is an application by a corporation and two individuals to be joined as respondents to a proceeding between Ottoway Engineering Pty Ltd (“Ottoway”) and Westpac Banking Corporation (“Westpac”). The applicants for joinder are ECAP Finance Pty Ltd (“ECAP”), Troy James Millen and…
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- Case
- [2017] FCA 39
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the applicants for joinder had a legal interest directly affected by the injunction, warranting their inclusion in the proceeding, and whether the delay in applying for dissolution of the injunction was sufficient grounds for relief. The court considered the nature of the applicants' interest, whether it was a legal or commercial interest, and whether it was directly affected by the injunction. In addressing the application for dissolution, the court examined the grounds for delay and other relevant factors to determine if the injunction should be dissolved.
The court found that the applicants for joinder did not have a legal interest directly affected by the injunction. Their interest was characterized as commercial rather than legal, thus not qualifying them for joinder. The court also dismissed the application for dissolution of the injunction, as the delay and other grounds presented were insufficient to warrant relief. The court concluded that the interlocutory injunction should remain in place.
The court issued orders dismissing the interlocutory application for joinder by ECAP Finance Pty Ltd, Troy James Millen, and Kelly Jean O'Brien. The costs associated with the application were to be determined at a later date.
Orders
Orders of the court
1. The interlocutory application issued by ECAP Finance Pty Ltd, Troy James Millen and Kelly Jean O’Brien (“the applicants for joinder”) dated 19 December 2016 be dismissed.
2. The respective applications of the applicant and the respondent against the applicants for joinder for the costs of the application be adjourned to a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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