The Proprietors of Paradise Park Resort One Bup 6865 v Brookchester Pty Ltd (in liquidation)

[1993] FCA 108

JUDGMENT No. ........ .. ....... to($ ,nq

, ,.

, I .

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION

No. G95 of 1992 i

QUEENSLAND DISTRICT REGISTRY

BETWEEN:

THE PROPRIETOR	S OF "PARADISE PARK RESORT
ONE BUP 6865"

First Applicant

m:

THE PROPRIETORS OF "PARADISE PARK RESORT

THREE BUP 6945"

Second Auplicant

m:

THE PROPRIETORS OF "PARADISE PARK RESORT

FOUR BUP 7274"

Third A~Ulicant

- AND:

THE PROPRIETORS OF "PARADISE PARK RESORT

SIX BUP 7405

Fourth Applicant

- AND:

THE PROPRIETORS OF "PARADISE PARK RESORT

SEVEN BUP 7509"

Fifth ApUlicant

m:

THE PROPRIETORS OF "PARADISE PARX RESORT

EIGHT BUP 7296"

Sixth Applicant

m:

THE PROPRIETORS OF "PARADISE PARK RESORT

TEN BUP 7007"

Seventh Auulicant

m:

THE PROPRIETORS OF "PARADISE PARK RESORT

ELEVEN BUP 7291"

Eiahth Applicant

AUSTRALIA PRINCIPAL REGISTRY

AND: 

a:

THE PROPRIETORS OF "PARADISE PARK RESORT

THIRTEEN BUP 7527"

Ninth Auplicant

AND :

THE PROPRIETORS OF "PARADISE PARK RESORT

FOURTEEN BUP 7528"

Tenth ADDlicant

AND:

THE PROPRIETORS OF PARADISE PARK RESORTS 1. 3. 4 . 6. 7. 8. 10. 11, 13 AND 14 ON BEHALF OF THEMSELVES AND ALL OTHER

OF GADENSTONE PTY . LTD. (SAVE

DEFENDANTS L

Eleventh ApUlicant

1 C MAR 1993

FEDERAL COURT OF

BROOKCHESTER PTY. LTD. (IN LIOUIDATION

First Respondent

GEMMERLEY PTY. LTD.

Second Resoondent

GADENSTONE PTY. LTD. NOW NAMED CENTRE

MANAGEMENT PTY. LTD.

Third Respondent

AND:

PARADISE PARK RESORT COMMON AREA PTY. LTD.

Fourth Respondent

AND:

CENTURY 21 DEVELOPMENTS LTD.

Fifth Respondent

AND:

PAUL ROY JONES

Sixth Respondent

m:

JENNIFER LOUISE JONES

Seventh Respondent

AND:

PENELOPE HEANEY

Eiahth Respondent

m:

MICHAEL HEANEY

Ninth Resoondent

m:

RENT SOUAD PTY. LTD. NOW NAMED WESTCORP REAL ESTATE PTY. LTD. trading as CORPORATE CONTROL

Tenth Respondent

MINUTES OF ORDER

E R A M	:	Cooper J.
PLACE :	Brisbane
m:	4 March, 1993

THE COURT ORDERS :-

1.        On the notice of motion filed on 10 November, 1992, that the sixth and seventh respondents pay the applicants to the motion costs of and incidental to the motion to be taxed.

2.        On the notice of motion filed on 16 February 1993, that the respondents to that motion, being the second to tenth respondents to the principal application, pay the applicants' costs of and incidental to the notice of motion to be taxed.

Note:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

9   A

GENERAL DIVISION
QUEENSLAND DISTRICT REGISTRY	NO. G95 of 1992
BETWEEN:

THE PROPRIETORS OF "PARADISE PARK RESORT

ONE BUP 6865"

First Applicant

- AND:

THE PROPRIETORS OF "PARADISE PARK RESORT

THREE BUP 6945"

Second Applicant

AND:

THE PROPRIETORS OF "PARADISE PARK RESORT

FOUR BUP 7274"

Third Applicant

I

I m:

THE PROPRIETORS OF "PARADISE PARK RESORT

SIX BUP 7405

Fourth Applicant

m:

THE PROPRIETORS OF "PARADISE PARK RESORT

SEVEN BUP 7509"

Fifth Applicant

AND:

THE PROPRIETORS OF "PARADISE PARK RESORT

EIGHT BUP 7296"

Sixth Apvlicant

AND :

THE PROPRIETORS OF "PARADISE PARK RESORT

TEN BUP 7007"

Seventh Applicant

m:

THE PROPRIETORS OF "PARADISE PARK RESORT

ELEVEN BUP 7291"

Eiqhth Applicant

m:

THE PROPRIETORS OF "PARADISE PARK RESORT

THIRTEEN BUP 7527" Ninth Apvlicant

THE PROPRIETORS OF "PARADISE PARK RESORT

FOURTEEN BUP 7528"

Tenth Applicant

AND:

THE PROPRIETORS OF PARADISE PARK RESORTS 1. 3 . 4. 6. 7, 8 . 10, 11, 13 AND 14 ON BEHALF OF THEMSELVES AND ALL OTHER SHAREHOLDERS OF GADENSTONE PTY. LTD. (SAVE

THE DEFENDANTS I

Eleventh Av~licant

m:

BROOKCHESTER PTY. LTD. (IN LIOUIDATION

First Resvondent

AND:

GEMMERLEY PTY. LTD.

Second Respondent

m:

GADENSTONE PTY. LTD. NOW NAMED CENTRE

MANAGEMENT PTY. LTD.

Third Res~ondent

m:

PARADISE PAWS RESORT COMMON AREA PTY. LTD.

Fourth Respondent

CENTURY 21 DEVELOPMENTS LTD.

Fifth Res~ondent

PAUL ROY JONES

Sixth Res~ondent

AND:

JENNIFER LOUISE JONES

Seventh Res~ondent

m:

PENELOPE HEANEY

Eishth Respondent

AND :

MICHAEL HEANEY

Ninth Respondent

RENT SOUAD PTY. LTD. NOW NAMED WESTCORP REAL ESTATE PTY. LTD. trading as CORPORATE CONTROL

Tenth ResDondent

CORAU:	Cooper J.
PLACE :	Brisbane
m:	4 March, 1993

EXTEMPORE REASONS FOR JUDGMENT

I am satisfied in this case that it was necessary on the part of the applicants to issue the proceedings in order to obtain substantial compliance with the existing orders in relation to delivery of a defence and the filing of an affidavit of documents by the respondents, the subject of the notice of motion.

I

It may well be that there is or was some explanation as to why there has been delay, but a review of the chronology shows that there has been a persistent failure to comply with the times set by the court, by myself in some instances and by Lee J. in another. The times set by Lee J. were by consent. If the respondents had difficulty, then it was for them to come back to the court to ask for those times to be extended.

There has been no application, and there has been no filing of the relevant documentation or delivery of the defence until such time as the applicants took out proceedings threatening to seek guillotine orders if the various earlier orders were not complied with.

There was an attempt on the part of the solicitors for the applicants to seek to avoid coming to court by agreeing a timetable. That opportunity was not taken up. I do not accept that one can blame the solicitors for the applicants for a failure to agree a timetable, simply because those solicitors, by letter of 12 February, point to particular areas wherein it is alleged that the discovery was

deficient.

THE COURT ORDERS :-

l. On the notice of motion filed on 10 November, 1992, that the sixth and seventh respondents pay the applicants to the motion costs of and incidental to the motion to be taxed.

On the notice of motion filed on 16 February 1993, that the respondents to that motion, being the second to tenth respondents to the principal application, pay the applicants' costs of and incidental to the notice of motion to be taxed.

An application has been made by the applicants that I make a special order providing for taxation and payment of the costs prior to the conclusion of the litigation. Having given the matter serious consideration, I am satisfied that while there is sufficient justification for making an order for costs in favour of the applicants on both motions, the circumstances are not yet such that I ought to make a special order ordering taxation and payment forthwith as opposed to payment in the ordinary course at the conclusion of litigation.

Part of the reason why I refuse to make a special order is that I note that the parties are to go through a process of mediation in the not too distant future, and I am satisfied that the existence of a special order may in some way operate to the prejudice of such a process, and that there

order today. is no overall prejudice to the applicants in refusing such an I adjourn the notice of motion to 19 March, 1993 at

2.15 pm for further consideration.

I certify that this and the preceding

three (3) pages are a true copy of the extempore reasons for judgment herein of his Honour Mr. Justice Cooper. . -

Date:  9 March, 1993 1 . [ L ~ ~ C l f , L c <

Associate

Counsel for the Applicants:	Mr. D. Savage
Solicitors for the Applicants:	Fitzwalter  Cull &
Walker
Counsel for the Respondents:	Mr. C. Carrigan
Solicitors for the Respondents:	S h o r t  P u n c h &
Greatorix
Date of Hearing:	4 March, 1993
Place of Hearing:	Brisbane