Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd
[2009] FCA 310
•26 MARCH 2009
FEDERAL COURT OF AUSTRALIA
Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd [2009] FCA 310
RON MEDICH PROPERTIES PTY LTD ACN 084 840 095 and KALMARN PTY LTD ACN 131 025 066 v BENTLEY-SMYTHE PTY LTD ACN 128 402 773, CONTROL RISKS INTERNATIONAL PTY LTD ACN 120 588 696, ACETT PTY LTD ACN 127 983 984, MICHAEL LOCH MCGURK and KIMBERLEY FRANCIS ANN MCGURK
NSD 224 of 2009
GRAHAM J
26 MARCH 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 224 of 2009
IN THE MATTER OF BENTLEY-SMYTHE PTY LTD ACN 128 402 773; CONTROL RISKS INTERNATIONAL PTY LTD ACN 120 588 696 AND ACETT PTY LTD ACN 127 983 984
BETWEEN: RON MEDICH PROPERTIES PTY LTD ACN 084 840 095
First PlaintiffKALMARN PTY LTD ACN 131 025 066
Second Plaintiff
AND: BENTLEY-SMYTHE PTY LTD ACN 128 402 773
First DefendantCONTROL RISKS INTERNATIONAL PTY LTD ACN 120 588 696
Second DefendantACETT PTY LTD ACN 127 983 984
Third DefendantMICHAEL LOCH MCGURK
Fourth DefendantKIMBERLEY FRANCIS ANN MCGURK
Fifth Defendant
JUDGE:
GRAHAM J
DATE OF ORDER:
26 MARCH 2009
WHERE MADE:
SYDNEY
THE COURT:
1. Grants leave to the plaintiffs to file in Court an Amended Originating Process dated 25 March 2009 and an Amended Interlocutory Process also dated 25 March 2009.
2. Orders, by consent, that the injunctive relief referred to in paragraph 8 of Graham J’s orders of 24 March 2009 be dissolved.
3. Orders that the Amended Interlocutory Process stand over part heard to 2:15 pm on Friday 27 March 2009.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 224 of 2009
IN THE MATTER OF BENTLEY-SMYTHE PTY LTD ACN 128 402 773; CONTROL RISKS INTERNATIONAL PTY LTD ACN 120 588 696 AND ACETT PTY LTD ACN 127 983 984
BETWEEN: RON MEDICH PROPERTIES PTY LTD ACN 084 840 095
First PlaintiffKALMARN PTY LTD ACN 131 025 066
Second Plaintiff
AND: BENTLEY-SMYTHE PTY LTD ACN 128 402 773
First DefendantCONTROL RISKS INTERNATIONAL PTY LTD ACN 120 588 696
Second DefendantACETT PTY LTD ACN 127 983 984
Third DefendantMICHAEL LOCH MCGURK
Fourth DefendantKIMBERLEY FRANCIS ANN MCGURK
Fifth Defendant
JUDGE:
GRAHAM J
DATE:
26 MARCH 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
These proceedings were commenced on 18 March 2009. On that day relief was sought ex parte before the duty judge. His Honour made an order in the following terms:
‘4.Upon the Applicants giving to the Court through counsel the undertakings referred to in Schedule A in the form of the Freezing Order “A” attached, I make the following orders against each of the first, second, third and fifth respondents in the form of that order.’
Later in the day, on 18 March, his Honour made a further order that:
‘All references to the fifth respondent in the orders previously made today be deleted and replaced by references to the fourth respondent, namely Mr Michael Loch McGurk, that being the intention of the Court in making the earlier orders.’
The orders that were made by his Honour were expressed to have effect up to and including 24 March 2009. The operative orders made by his Honour are to be found in paragraphs 6 and 7 of the Freezing Order ‘A’, and in paragraph 8 of the Freezing Order ‘A’.
The return date specified by his Honour for the matter to come back before the Court was 10.15 am on 24 March 2009. At that time the matter came before me and on 24 March 2009 I made an order by consent, without admission and subject to the orders sought by the defendants in their Notice of Motion dated 24 March 2009, including an order in the following terms:
‘8.Upon the plaintiffs giving to the Court through their counsel the undertaking in Schedule A to the form of Freezing Order “A” attached to the orders made on 18 March 2009, the Court makes orders against the first to fourth respondents in the form of that order up to and including 6pm on Thursday, 26 March 2009, save that the time for compliance with Orders 8(a) and 8(b) be extended up to and including 7 April 2009.’
It may be observed that in the orders made by consent on 24 March 2009 no relief was sought in respect of the fifth defendant.
Earlier today, leave was granted to the plaintiffs to file in Court an Amended Originating Process dated 25 March 2009 and an Amended Interlocutory Process, also dated 25 March 2009. The Notice of Motion of the respondents to which reference was made in the orders of 24 March 2009 sought relief in some seven substantive prayers for relief. Prayer for relief 3 sought an order that the orders made on 18 March 2009 be vacated nunc pro tunc by reason of material non-disclosure by the applicants. The parties were agreed at the commencement of the hearing before me today that the logical first step was to consider that prayer for relief.
However, before embarking upon a hearing of the Notice of Motion in respect of that prayer for relief, the parties sought an indulgence to consider whether or not there was a more economical way of dealing with the matter in the interests of the parties. When the hearing resumed shortly after 2 pm today, the parties agreed that, in effect, a clean slate should be introduced and the earlier injunctive relief should be set aside without any determination being made on, amongst other things, the alleged material non-disclosure on 18 March 2009. Without prejudice to the rights of the defendants to raise matters of alleged non-disclosure on the later hearing of the amended interlocutory process, I have been asked to set aside the operative orders that are presently in place.
By consent I order that the injunctive relief granted by me and referred to in order 8 of 24 March 2009 be dissolved.
I will order that the Amended Interlocutory Application stand over part heard to 2.15 pm on Friday, 27 March 2009. I would not propose to order any interlocutory relief between now and then.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 1 April 2009
Counsel for the Plaintiffs: C R C Newlinds SC and J Baird Solicitor for the Plaintiffs: Legal Ease Lawyers Counsel for the Defendants: A J Sullivan QC and J S Emmett Solicitor for the Defendants: Homan Webb
Date of Hearing: 26 March 2009 Date of Judgment: 26 March 2009
0
0
0