Reid v Interarch Australia Pty Ltd

[2000] FCA 1328

FEDERAL COURT OF AUSTRALIA

Reid v Interarch Australia Pty Limited (ACN 069 490 795) [2000] FCA 1328

PRACTICE AND PROCEDURE – motion for summary judgment seeking to enforce settlement agreement after default on payment under settlement deed - whether fresh proceedings should be instituted – whether substantial matters in controversy are involved beyond the ambit of the proceedings as originally constituted – whether, in the interests of justice, disposition of the matter on summary application is appropriate

BANKRUPTCY – provable debt - whether the claim against the second respondent should be characterised as arising by reason of a contract or promise – whether the second respondent was precluded from entering the deed of settlement by reason of his bankruptcy - s 82(2) Bankruptcy Act 1958 (Cth) concerns only claims for damages for breach of the bankrupt’s contract or promise, not that of third parties – test is whether the contract or promise constitutes an essential element of the cause of action

Bankruptcy Act 1958 (Cth) ss 58(3), 82(1), 82(2), 134(1)(f), 153A
Federal Court of Australia Act 1976 (Cth) ss 51A, 52
Trade Practices Act 1974 (Cth) ss 52, 75B, 82

Re Alston (1899) 16 WN (NSW) 22 cited
Darling Downs Investments Pty Limited v Ellwood (1988) 18 FCR 510 cited
Phillips v Walsh (1990) 20 NSWLR 206 applied
Victor v Victor [1912] 1 KB 247 cited
Aliferis v Kyriacou [2000] VSCA 123 applied

CATHERINE GAY REID & ANOR v INTERARCH AUSTRALIA PTY LIMITED (ACN 069 490 795) & ANOR

NG 981 OF 1998

HELY J
19 SEPTEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 981 OF 1998

BETWEEN:

CATHERINE GAY REID
FIRST APPLICANT

ACTIVE CARE PHARMACIES (AUST) PTY LIMITED
(ACN 081 486 222)
SECOND APPLICANT

AND:

INTERARCH AUSTRALIA PTY LIMITED
(ACN 069 490 795)
FIRST RESPONDENT

GEOFFREY POWELL
SECOND RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

19 SEPTEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.the proceedings be dismissed, with no order for costs, insofar as claims made by the first applicant are concerned.

2.judgment be entered for the second applicant against the first and second respondents in the sum of $500,000.

3.the first and second respondents pay the second applicant’s costs of these proceedings.

4.the second applicant’s Notice of Motion for summary judgment dated 28 April 2000, and the respondent’s motion for a stay of 8 September 2000, be dismissed.

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 981 OF 1998

BETWEEN:

CATHERINE GAY REID
FIRST APPLICANT

ACTIVE CARE PHARMACIES (AUST) PTY LIMITED
(ACN 081 486 222)
SECOND APPLICANT

AND:

INTERARCH AUSTRALIA PTY LIMITED
(ACN 069 490 795)
FIRST RESPONDENT

GEOFFREY POWELL
SECOND RESPONDENT

JUDGE:	HELY J
DATE:	19 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These proceedings were instituted by an application filed on 17 September 1998.  It is not necessary for consideration to be given to the position…