Sanirise Pty Ltd v Court & Co Ltd

[1996] FCA 1203

JUDGMENT No. .d&9h2..1 L26

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 3185 of 1995
GENERAL DIVISION	)

Between: SANIRISE PTY LIMITED

First Applicant

CHRISTINE KELLY & FRANK NEJAD

Second applicants

And: COURT & CO LIMITED

Respondent

REASONS FOR J U D W N T

EINFELD J SYDNEY 28 FEBRUARY 1996

By motion filed on 30 June 1995 the respondent seeks an order that the amended application filed in Court on 29 June, supported by statement of claim filed on the same date, should be summarily dismissed. The grounds are set out in written submissions which have been supplied by the solicitor for the respondent and there is no particular reason why I should repeat them now, except to say that I agree with the thrust of the submissions.

The application sought to be struck out seeks two main orders.

One is that the respondent be removed as the administrator of

the applicant company, the second is that upon certain

9,

undert'gkings by the applicant, the respondent should be ordered to release to the applicant all the plant, equipment, stock and

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other assets of the applicant company in the respondent's

control or custody.

There is no utility in such orders being made. Indeed, there is no possibility that they could be made, first, becape as a S * *

.*

matter of fact the respondent is no longer the tqd;ninistrator"'iof ... . $ 5 : > f , ! * S

$ ! ; ; l , ? . , ' 5

the applicant company and, second, because the Qoods:. r'efemact ta

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have already been disposed of by sale with the responde'nf'havin

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obtained the proceeds of sale and applied them t&,,;thdsayment.&f

b. I$

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creditors. Accordingly, the applications for those "grders would

have to fail on the facts.

The other two things sought in the application are an unspecified claim for damages and an unspecified claim for interest. The applicant indicated through counsel today that it

was willing to consent to an order that the proceedings be permanently stayed, but for my part, I can see no difference in substance between a permanent stay and a dismissal, and of the two, in the facts of this case as outlined in the written submissions, dismissal seems to me to be the appropriate result.

The other matters sought in the respondent's motion are no longer required or relevant, because they dealt with security for costs in the event that the proceedings were not dismissed. However, the respondent also seeks its costs of the motion and

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in its submissions to the Court makes out a strong case for such

an order.

It has been one of the features of this litigation that the applicant company and the personal applicants have no assets of any substance at all that could be relied upon to pay any order for costs now made. But that is not a reason for not making such an order and no-one is more aware of the situation of the applicant company, at least, than the respondent. If he is willing to take an order for costs in the apparent certainty that he will not, at any rate in the foreseeable future, recover the costs, then there is no reason at all for this Court to stand in the way.

Indeed, for the positive reasons referred to in the written submissions, the only conclusion that can be drawn is that the applicants have successfully drawn out these proceedings now for a very long time. The original application - the one before the Court now is an amendment - was filed on 24 April 1995, some 10 months ago. Although there have been some interlocutory orders and arrangements which have permitted the applicant company to consider its position and maximise its claim for any injustice while at the same time allowing the respondent to get on with his task under the administration and perhaps under the deed of compady arrangement, there has never emerged, during the course

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of these proceedings, any basis upon which the orders in the

amended application could be made.

For those reasons it is my decision that the proceedings by Sanirise Pty Limited and the two individual applicants, Kelly and Nijad, against John Vouros should be dismissed with costs, including any costs reserved on previous occasions.

I certify that this and the 7 7 * 5

preceding pages are a true copy of the

Reasons for Judgment herein of his Honour

Justice Einfeld /d&,

i Associate

Dated:- -2 p 4,; I 1797

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