Pattison (Trustee of the Bankrupt Estate of Tom Karas) v Conmoore Pty Ltd

[1999] FCA 1247

FEDERAL COURT OF AUSTRALIA

Pattison (Trustee of the Bankrupt Estate of Tom Karas) v Conmoore Pty Ltd [1999] FCA 1247

PAUL PATTISON (as Trustee of the Bankrupt Estate of TOM KARAS)
v CONMOORE PTY LTD (ACN 053 243 995), IRENE KARAS (nee MELETSIS), AUSTRALIA & NEW ZEALAND BANKING GROUP LTD and TOM KARAS

RYAN J
MELBOURNE
6 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 7216 OF 1998

BETWEEN:

PAUL PATTISON
(as Trustee of the Bankrupt Estate of TOM KARAS)
Applicant

AND:

CONMOORE PTY LTD (ACN 053 243 995)
First Respondent

IRENE KARAS (nee MELETSIS)
Second Respondent

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
(ACN 005 357 522)
Third Respondent

TOM KARAS
Fourth Respondent

JUDGE:

RYAN J

DATE OF ORDER:

6 SEPTEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS:

(1)That the application against the fourth respondent be struck out with no order as to costs.

(2)That the application against the first and second respondents be adjourned to a date to be fixed, not earlier than 11 October 1999.

(3)That upon payment of the amount of $80,000 stated in the offer of compromise within the time agreed between the parties, the applicant's costs of the application, (including any reserved costs) incurred up to and including 28 July 1999, be taxed and paid by the first and second respondents and the first and second respondents' costs of the application incurred after 28 July 1999, including their costs of this day, be taxed and paid or allowed by the applicant.

(4)That in the event of non-payment by the agreed date of the said sum of $80,000, the costs of this day as between the applicant and the first and second respondents be reserved.

(5)That liberty be reserved to any party to apply on not less than 48 hours' notice in writing to the other parties.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7216 OF 1998

BETWEEN:

PAUL PATTISON
(as Trustee of the Bankrupt Estate of TOM KARAS)
Applicant

AND:

CONMOORE PTY LTD (ACN 053 243 995)
First Respondent

IRENE KARAS (nee MELETSIS)
Second Respondent

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
(ACN 005 357 522)
Third Respondent

TOM KARAS
Fourth Respondent

JUDGE:	RYAN J
DATE:	6 SEPTEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 6 July 1999 an offer of compromise was made to the applicant by the solicitor then acting for the first and second respondents in these terms:

   Take notice that the First and Second Respondents make the following offer of compromise to the Applicant in respect of all the claims in this proceeding against them or either of them and any other claim relating to the purchase, ownership or sale of property situated at 320 Drummond Street, Carlton against the First and Second Respondents or either of them.

   (1)This offer of compromise is made under Order 23 of the Rules of the Federal Court of Australia.

   (2)The First and Second respondents offer to pay to the applicant the sum of $80,000 together with costs of this proceeding to be taxed in full settlement of all the claims in this proceeding against them or either of them and any other claim relating to the purchase, ownership or sale of property situated at 320 Drummond Street, Carlton against the First and Second Respondents or either of them.

2. That offer did not stipulate any time for its acceptance.  However, it has to be construed against the background of the timetable leading to a hearing of this application which was laid down by my order of 18 June 1999.  That order provided, amongst other things:

   (3)That the time for filing and service of affidavits of evidence by the first, second and fourth respondents fixed by paragraph 5 of the said order of 13 April 1999 be extended to 16 July 1999.

   (4)       That there be mutual inspection of documents by 2 July 1999.

   (5)That the applicant file and serve a list of proposed contents of a common Court Book by 23 July 1999.

   (6)That in default of agreement about the contents of a common Court Book there be a pre-trial conference and directions hearing before Deputy Registrar Efthim on a date to be fixed, not before 28 July 1999.

3. In my view it is reasonable to give effect to the offer of compromise on the basis that the applicant had until 28 July 1999 to accept it.  That was the date when the parties were directed to appear before Deputy Registrar Efthim in the event of their failing to agree on the contents of a common court book.

4. Mr Irlicht has submitted that the Court should order the applicant to pay the first and second respondents' costs of an application made against the third respondent, the ANZ Bank, on 7 and 8 April 1998.  The application against that respondent has subsequently been discontinued.  However, the offer of compromise made no reference to costs of the hearing on those days in 1998 which were reserved at the conclusion of an application for interlocutory injunction and could reasonably be regarded as having been included in the costs "of this proceeding" which it was proposed by the offer of compromise should be taxed in the event of acceptance of that offer.

5. I do not consider that there is any power in the Court to order payment of interest on the amount which is payable to the applicant on acceptance of the offer of compromise.  Accordingly, I shall reformulate the order which I proposed earlier this morning to provide:

   (1)That the application against the fourth respondent be struck out with no order as to costs.

   (2)That the application against the first and second respondents be adjourned to a date to be fixed, not earlier than 11 October 1999.

   (3)That upon payment of the amount of $80,000 stated in the offer of compromise within the time agreed between the parties, the applicant's costs of the application, including any reserved costs incurred up to and including 28 July 1999, be taxed and paid by the first and second respondents and the first and second respondents' costs of the application incurred after 28 July 1999, including their costs of this day, be taxed and paid or allowed by the applicant.

   (4)That in the event of non-payment by the agreed date of the said sum of $80,000, the costs of this day as between the applicant and the first and second respondents be reserved.

   (5)That liberty be reserved to any party to apply on not less than 48 hours' notice in writing to the other parties.

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

Associate:

Dated:             6 September 1999

Counsel for the Applicant:	Mr M Carter
Solicitor for the Applicant:	McIntyre & Carter
Counsel for the First Respondent:	Mr P M Bornstein
Solicitor for the First Respondent:	Brygel Lawyers
Counsel for the Second and Fourth Respondents	Mr T Irlicht
Solicitor for the Second and Fourth Respondents	Irlicht and Broberg
Date of Hearing:	6 September 1999
Date of Judgment:	6 September 1999