Tennant Ltd v McVeigh, D.R

[1995] FCA 427

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    NO. NG 3298 OF 1995
GENERAL DIVISION                 )

IN THE MATTER OF

HARRINGTONS METALLURGISTS LIMITED
(Receivers and Managers Appointed)

and the Corporations Law

BETWEEN:

TENNANT LIMITED
  Applicant

AND:

DEAN ROYSTON McVEIGH
  First Respondent

KENNETH JOHN RENNIE
  Second Respondent

JOHN RAYMOND GIBBINS
  Third Respondent

CORAM:    SACKVILLE J.
DATE:        23 JUNE, 1995
PLACE:    SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion filed by the applicant on 21 June 1995 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 )    NO. NG 3298 OF 1995
GENERAL DIVISION                 )

IN THE MATTER OF

HARRINGTONS METALLURGISTS LIMITED
(Receivers and Managers Appointed)

and the Corporations Law

BETWEEN:

TENNANT LIMITED
  Applicant

AND:

DEAN ROYSTON McVEIGH
  First Respondent

KENNETH JOHN RENNIE
  Second Respondent

JOHN RAYMOND GIBBINS
  Third Respondent

CORAM:    SACKVILLE J.
DATE:        23 JUNE, 1995
PLACE:    SYDNEY

REASONS FOR JUDGMENT
Introduction
The Applicant ("Tennant") is a trader in gold and silver.  Its activities include purchasing what is known as gold dore and silver dore and engaging a company known as Harringtons Metallurgists Ltd ("Harringtons") to undertake toll refining to produce purer gold or silver from the dore by removing impurities.  The second and third respondents are the receivers and managers of Harringtons, appointed on 25 May 1995 pursuant to a deed of charge.  I shall refer to them as "the receivers".

In the principal proceedings, Tennant seeks a declaration that certain silver and gold, specified in the schedule to the application is its property.  The schedule is as follows:

"SCHEDULE TO APPLICATION

DATED 16.06.95

A.Silver

1.200 kilograms of silver purchased by the Applicant from Harringtons Metallurgists Limited for which payment was made of AUD 47,968.84 on 20/04/95 now allocated to the Applicant's account.

2.200 kilograms delivered by the Applicant to Harringtons Metallurgists Limited for toll refining on 23/05/95.

3.200 kilograms of silver purchased by the Applicant from Harringtons Metallurgists Limited for which payment was made in the sum of AUD49,757.13 on 22 May 1995.

B.Gold

1.904.294 grams of gold.

2.2059.500 grams of gold."

The application also seeks orders for the delivery up of the silver and gold identified in the schedule.  It is to be noted that Harringtons is not a party to Tennant's application.

The Proceedings
On 22 June 1993 Tennant moved the Court on notice for interim orders restraining the receivers from dealing with or disposing of the property described in the schedule to the application.  As the argument developed, it became clear that Tennant could not identify a precise quantity of silver and gold in the possession of Harringtons or the receivers, corresponding exactly to the items described in the schedule.  Mr Laughton, on behalf of Tennant, said that the applicant sought to restrain the receivers from disposing of the quantities of silver and gold specified in the schedule, insofar as they formed part of larger quantities of silver…