FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMS v SUDA LTD (No.2) | [2016] FCCA 2781 |
| Catchwords: PRACTICE AND PROCEDURE – Discovery – whether discovery in the interests of the administration of justice – relevance. |
| Legislation: Bankruptcy Act 1966 (Cth), s.52(2) Federal Circuit Court of Australia Act 1999, ss.3 and 45 Federal Circuit Court Rules 2001 (Cth), r.1.03 |
| Applicant: | DOUGLAS ARTHUR SIMS |
| Respondent: | SUDA LTD |
| File Number: | PEG 448 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 27 October 2016 |
| Date of Last Submission: | 27 October 2016 |
| Delivered at: | Perth |
| Delivered on: | 27 October 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr NC Ebbs |
| Solicitors for the Respondent: | Bennett+Co |
ORDERS
That the applicant’s application in a case filed 19 October 2016 be dismissed.
That the applicant pay the respondent’s costs in the sum of $750 by 4 November 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 448 of 2016
| DOUGLAS ARTHUR SIMS |
Applicant
And
| SUDA LTD |
Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
The Court has before it an application in a case by the applicant, Mr Sims, which in essence seeks discovery of certain documents for the purposes of the substantive proceedings. In the substantive proceedings Mr Sims brings an application for review of a Registrar's sequestration order against Mr Sims (“Review Application”).
The application in a case seeks the discovery of the following documents:
a)a document of assignment from the administrator, HC Berlin Pharma AG (“BP”) assigning back to Suda Ltd the beneficial ownership of patent numbers US6180105, GB0720967.9 and GB611079.5 assigned to BP by Suda Ltd;
b)the original, alternately stamped, copy of the replacement manufacturing agreement between Eastland Medical Systems Limited, now Suda Ltd, and BP dated 22 April 2009 together with all annexures;
c)original certificate of assignments of malaria patents under company seal August 2008; and
d)disclosure of rights presented to:
i)the members of Novadel Pharma Inc;
ii)Bank of America;
iii)Bergen Opportunity Fund LLC; and
iv)purchase of patents contract between Protopharma, London Pharma and Suda Ltd.
The application is supported by an affidavit of Mr Sims (Mr Sims’ Affidavit”) which is in the following terms:
1) On 29 July 2008 Eastland Medical Systems Ltd, now Suda Ltd., assigned under company seal the patents rights of the malaria patents to HC Berlin Pharma AG (BP).
2) On 13 October 2008 BP wrote Suda a request to clarify the patents ownership to Suda as Suda had acquired all rights of its subsidiary…
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- AGLC
- Sims v Suda Ltd (No.2) [2016] FCCA 2781
- Case
- [2016] FCCA 2781
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the sequestration order should be set aside. Ancillary to this, the court considered whether discovery should be ordered in the interests of the administration of justice, focusing on the relevance of the proposed discovery to the determination of the sequestration application.
Judge Lucev found that the sequestration order should be set aside. His Honour reasoned that the creditor's petition had not been properly served on the debtor, which was a fundamental defect. Consequently, the Registrar lacked the jurisdiction to make the sequestration order. Regarding the discovery application, his Honour determined that while discovery can be ordered in bankruptcy proceedings, it must be relevant and in the interests of justice. In this instance, given the fatal flaw in the service of the petition, the proposed discovery was not considered necessary for the administration of justice.
The sequestration order was set aside.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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