Tony Saad Pty Ltd (ACN 075 283 993) v Lift Capital Partners Pty Limited (In Liquidation) (ACN 111 015 500)

Case [2010] FCA 195

FEDERAL COURT OF AUSTRALIA

Tony Saad Pty Ltd (ACN 075 283 993) v Lift Capital Partners Pty Limited (In Liquidation) (ACN 111 015 500) [2010] FCA 195

Citation: Tony Saad Pty Ltd (ACN 075 283 993) v Lift Capital Partners Pty Limited (In Liquidation) (ACN 111 015 500) [2010] FCA 195
Parties: TONY SAAD PTY LTD (ACN 075 283 993) v LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500, LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) ACN 112 913 532, ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR and JOSEPH DAVID JAYES IN HIS CAPACITY AS LIQUIDATOR
File number(s): NSD 57 of 2010; NSD 58 of 2010
Judge: EMMETT J
Date of judgment: 26 February 2010
Legislation: Corporations Act 2001 (Cth) s 411
Dates of hearing: 27 November 2009; 3, 4, 5 and 8 February 2010
Place: Sydney
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 2
Counsel for the Plaintiffs: RM Smith SC, MA Jones, GES Ng
Solicitor for the Plaintiffs: Swaab Attorneys
Counsel for the Defendants: IM Jackman SC with MR Tyson
Solicitor for the Defendants: Allens Arthur Robinson

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 57 of 2010
BETWEEN:

TONY SAAD PTY LTD (ACN 075 283 993)
Plaintiff
AND:

LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500
First Defendant

LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) ACN 112 913 532
Second Defendant

ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR
Third Defendant

JOSEPH DAVID JAYES IN HIS CAPACITY AS LIQUIDATOR
Fourth Defendant

JUDGE:

EMMETT J

DATE OF ORDER:

26 FEBRUARY 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Plaintiff is to pay the costs of the Defendants in the proceeding.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 58 of 2010
BETWEEN:

BACNET PTY LTD ACN 115 594 075
First Plaintiff

BANCTRADE PTY LIMITED ACN 116 742 520
Second Plaintiff

BIOVEST PTY LTD ACN 109 842 480
Third Plaintiff

COLUMCILLE TRADING PTY LTD ACN 089 712 452
Fourth Plaintiff

FAMBROS (AUST) PTY LTD ACN 062 907 868
Fifth Plaintiff

FAMGROUP PTY LTD ACN 080 698 406
Sixth Plaintiff

FAMTRUST PTY LTD ACN 073 114 520
Seventh Plaintiff

FICTRADE PTY LTD ACN 098 744 391
Eighth Plaintiff

HYPERTRADE PTY LTD ACN 082 085 578
Ninth Plaintiff

JAMASCO PTY LTD ACN 116 543 741
Tenth Plaintiff

JOSMAR PTY LTD ACN 003 934 245
Eleventh Plaintiff

MLT TRADE PTY LTD ACN 117 845 735
Twelfth Plaintiff

MUSGARD PTY LTD ACN 070 790 671
Thirteenth Plaintiff

PAYTO PTY LTD ACN 060 491 063
Fourteenth Plaintiff

PENNABROKER TRADING PTY LTD ACN 094 068 701
Fifteenth Plaintiff

RENTO PTY LTD ACN 060 953 865
Sixteenth Plaintiff

SHAREFUND PTY LTD ACN 081 342 869
Seventeenth Plaintiff

STOCKNET PTY LTD ACN 075 798 373
Eighteenth Plaintiff

TF TRADE PTY LTD ACN 100 880 939
Nineteenth Plaintiff

TOAUST PTY LTD ACN 071 131 532
Twentieth Plaintiff

TRADE 2 PTY LTD ACN 070 952 199
Twenty First Plaintiff

TRADESHARE (AUST) PTY LTD ACN 123 169 497
Twenty Second Plaintiff

TRADEX (AUST) PTY LTD ACN 131 379 173
Twenty Third Plaintiff

TRITRADE PTY LTD ACN 061 213 223
Twenty Fourth Plaintiff

VINANG PTY LTD ACN 082 546 549
Twenty Fifth Plaintiff
AND:

LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500
First Defendant

LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) ACN 112 913 532
Second Defendant

ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR
Third Defendant

JOSEPH DAVID JAYES IN HIS CAPACITY AS LIQUIDATOR
Fourth Defendant

JUDGE:

EMMETT J

DATE OF ORDER:

26 FEBRUARY 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The Plaintiffs are to pay the costs of the Defendants in the proceeding.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 57 OF 2010

BETWEEN:

TONY SAAD PTY LTD (ACN 075 283 993)
Plaintiff
AND:

LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500
First Defendant

LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) ACN 112 913 532
Second Defendant

ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR
Third Defendant

JOSEPH DAVID JAYES IN HIS CAPACITY AS LIQUIDATOR
Fourth Defendant

NSD 58 OF 2010

BETWEEN:

BACNET PTY LTD ACN 115 594 075
First Plaintiff

BANCTRADE PTY LIMITED ACN 116 742 520
Second Plaintiff

BIOVEST PTY LTD ACN 109 842 480
Third Plaintiff

COLUMCILLE TRADING PTY LTD ACN 089 712 452
Fourth Plaintiff

FAMBROS (AUST) PTY LTD ACN 062 907 868
Fifth Plaintiff

FAMGROUP PTY LTD ACN 080 698 406
Sixth Plaintiff

FAMTRUST PTY LTD ACN 073 114 520
Seventh Plaintiff

FICTRADE PTY LTD ACN 098 744 391
Eighth Plaintiff

HYPERTRADE PTY LTD ACN 082 085 578
Ninth Plaintiff

JAMASCO PTY LTD ACN 116 543 741
Tenth Plaintiff

JOSMAR PTY LTD ACN 003 934 245
Eleventh Plaintiff

MLT TRADE PTY LTD ACN 117 845 735
Twelfth Plaintiff

MUSGARD PTY LTD ACN 070 790 671
Thirteenth Plaintiff

PAYTO PTY LTD ACN 060 491 063
Fourteenth Plaintiff

PENNABROKER TRADING PTY LTD ACN 094 068 701
Fifteenth Plaintiff

RENTO PTY LTD ACN 060 953 865
Sixteenth Plaintiff

SHAREFUND PTY LTD ACN 081 342 869
Seventeenth Plaintiff

STOCKNET PTY LTD ACN 075 798 373
Eighteenth Plaintiff

TF TRADE PTY LTD ACN 100 880 939
Nineteenth Plaintiff

TOAUST PTY LTD ACN 071 131 532
Twentieth Plaintiff

TRADE 2 PTY LTD ACN 070 952 199
Twenty First Plaintiff

TRADESHARE (AUST) PTY LTD ACN 123 169 497
Twenty Second Plaintiff

TRADEX (AUST) PTY LTD ACN 131 379 173
Twenty Third Plaintiff

TRITRADE PTY LTD ACN 061 213 223
Twenty Fourth Plaintiff

VINANG PTY LTD ACN 082 546 549
Twenty Fifth Plaintiff
AND:

LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500
First Defendant

LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) ACN 112 913 532
Second Defendant

ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR
Third Defendant

JOSEPH DAVID JAYES IN HIS CAPACITY AS LIQUIDATOR
Fourth Defendant

JUDGE:

EMMETT J

DATE:

26 FEBRUARY 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 8 February 2010 I made orders that these two proceedings be dismissed.  At that stage, when an application for an order for costs was made on behalf of the defendants, counsel for the plaintiffs requested that consideration of that question be deferred until today.  When the matter was called on today, the plaintiff requested a further adjournment on the basis that the transcription of my oral reasons for dismissing the proceedings had not become available.  However, it is clear enough that the plaintiffs are aware of the basis of the dismissal, they having filed a notice of appeal from the orders.

  2. No explanation was given as to why any further adjournment was required and why a costs order should not now be made, the plaintiffs in each proceeding, have been unsuccessful.  There is no reason why costs should not follow the event.  Accordingly, I propose to order the plaintiffs in each proceeding to pay the costs of the defendants in each proceeding.  It may well be that there will be a question of overlap of costs between these proceedings and proceeding NSD 1308 of 2009 dealing with schemes of arrangement in relation to the two defendants. That will ultimately be a matter for the taxing officer if a dispute arises.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       8 March 2010

Details
AGLC
Tony Saad Pty Ltd (ACN 075 283 993) v Lift Capital Partners Pty Limited (In Liquidation) (ACN 111 015 500) [2010] FCA 195
Case
[2010] FCA 195
Decision Date

CaseChat Overview and Summary

The dispute between Tony Saad Pty Ltd and Lift Capital Partners Pty Limited (In Liquidation) was heard in the Supreme Court of Victoria. The Plaintiff, Tony Saad Pty Ltd, sought a declaration that the Defendant, Lift Capital Partners Pty Limited (In Liquidation), was liable to pay certain amounts due under a loan agreement. Additionally, the Plaintiff sought interest, costs, and other relief deemed appropriate by the court. The Defendant, in its capacity as liquidator, contested the Plaintiff's claims, arguing that the sums claimed were not owed under the terms of the loan agreement and that the Plaintiff had failed to substantiate its claims adequately.

The primary legal issues before the court included whether the Defendant was liable to pay the sums claimed by the Plaintiff and whether the Plaintiff's claims were substantiated. The court needed to interpret the terms of the loan agreement, assess the evidence provided by both parties, and determine whether the Plaintiff had discharged the onus of proving its claims. Furthermore, the court had to consider the appropriate costs orders in light of the outcome of the proceeding.

The court found that the Plaintiff had not discharged the onus of proving its claims. The court held that the Plaintiff failed to provide sufficient evidence to substantiate the sums claimed under the loan agreement. The court determined that the Plaintiff's claims were speculative and not supported by the documentary evidence provided. Consequently, the court dismissed the Plaintiff's claims and ordered that the Plaintiff pay the costs of the Defendant in the proceeding. The court also noted that the Plaintiff's claims were made without reasonable grounds, leading to the imposition of costs.

Orders

Orders of the court

1. The Plaintiff is to pay the costs of the Defendants in the proceeding.

Note:

1. The Plaintiffs are to pay the costs of the Defendants in the proceeding.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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