Salyer v Sharp

[2012] FCA 735

FEDERAL COURT OF AUSTRALIA

Salyer v Sharp [2012] FCA 735

Citation:	Salyer v Sharp [2012] FCA 735
Parties:	SCOTT SALYER AS TRUSTEE FOR THE SCOTT SALYER REVOCABLE TRUST, SKPM CORPORATION, MONTEREY PENINSULA FARMING LLC, FAST FALCON LLC and SS FARMS LLC v BRADLEY D. SHARP (CHAPTER 11 TRUSTEE) and ROBERT C. GREELEY, RECEIVER
File number:	NSD 500 of 2012
Judge:	EMMETT J
Date of judgment:	4 June 2012
Legislation:	Corporations Act 2001 (Cth) s 581
Date of hearing:	4 June 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	4
Counsel for the plaintiffs:	The plaintiffs did not appear
Counsel for the defendants:	G Lucarelli
Solicitor for the defendants:	Duncan Cotterill

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 500 of 2012

BETWEEN:

SCOTT SALYER AS TRUSTEE FOR THE SCOTT SALYER REVOCABLE TRUST
First Plaintiff

SKPM CORPORATION
Second Plaintiff

MONTEREY PENINSULA FARMING LLC
Third Plaintiff

FAST FALCON LLC
Fourth Plaintiff

SS FARMS LLC
Fifth Plaintiff

AND:

BRADLEY D. SHARP (CHAPTER 11 TRUSTEE)
First Defendant

ROBERT C. GREELEY, RECEIVER
Second Defendant

JUDGE:	EMMETT J
DATE OF ORDER:	4 JUNE 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceeding be dismissed.

2.The plaintiffs pay the defendants’ costs of the proceeding.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 500 of 2012

BETWEEN:

SCOTT SALYER AS TRUSTEE FOR THE SCOTT SALYER REVOCABLE TRUST
First Plaintiff

SKPM CORPORATION
Second Plaintiff

MONTEREY PENINSULA FARMING LLC
Third Plaintiff

FAST FALCON LLC
Fourth Plaintiff

SS FARMS LLC
Fifth Plaintiff

AND:

BRADLEY D. SHARP (CHAPTER 11 TRUSTEE)
First Defendant

ROBERT C. GREELEY, RECEIVER
Second Defendant

JUDGE:	EMMETT J
DATE:	4 JUNE 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding was commenced by an originating application filed on 3 April 2012 by Scott Salyer, as trustee for the Scott Salyer Revocable Trust, SKPM Corporation, Monterey Peninsula Farming LLC, Fast Falcon LLC, and SS Farms LLC. The defendants are Bradley Sharp, a United States trustee in bankruptcy, and Robert Greeley, a receiver appointed by the United States Bankruptcy Court in respect of certain assets. The final relief claimed is an order that the defendants be restrained from taking any steps to file any letter of request in the Federal Court pursuant to s 581 of the Corporations Act 2001 (Cth), or seeking any orders ex parte where the plaintiffs are named as defendants or respondents, without three clear days notice to the plaintiffs. 

2. The proceeding was listed for directions on 4 April 2012, and orders were made for abridgement of the time for service.  It has been managed in conjunction with other proceedings involving the same parties, or other parties with whom the parties have some connection, in relation to a dispute relating to the administration of SK Foods Australia Pty Ltd.  The related proceedings were all listed before me for directions on 30 April 2012.  On that day, all parties were represented.  The directions given on that occasion included directions in relation to proceeding NSD 542 of 2012, which is an application under the cross-border insolvency legislation, seeking recognition of the status of parties involved in the present proceeding, including Mr Greeley.  It was apparent to all parties that, to the extent necessary, this proceeding would be dealt with on 30 May 2012 and 4 June 2012, when all the proceedings were fixed, either for directions or for the hearing of interlocutory applications.

3. On 7 May 2012, notices of ceasing to act were filed by the solicitors who were then on the record as acting on behalf of all of the plaintiffs.  On 23 May 2012, the plaintiffs were informed that the plaintiffs in the cross-border insolvency proceeding, whose solicitors represent the defendants in the present proceeding, intended to press for the hearing of the cross-border insolvency proceeding on 30 May 2012, if the timetable allowed. 

4. In the events that have occurred, the listing on 30 May 2012 was vacated by the Court on the basis that the proceedings would be dealt with today, 4 June 2012.  When the matter was called on today, there was no appearance for the plaintiffs.  The defendants now move ore tenus for dismissal of the proceeding.  In the circumstances, it is appropriate to accede to that application, and I propose to make orders accordingly.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 9 July 2012