Udowenko v Rasevi Pty Limited

[2006] FCA 1217

FEDERAL COURT OF AUSTRALIA

Udowenko v Rasevi Pty Limited [2006] FCA 1217

Bankruptcy Act 1966 (Cth) ss 37(2) and 153B

MICHAEL AND HELEN UDOWENKO v RASEVI PTY LIMITED, ROBERT JOHN CRUICKSHANKS, FLORENCE CHOO AND THE OFFICIAL TRUSTEE IN BANKRUPTCY

NSD 2377 OF 2005

MADGWICK J
21 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2377 OF 2005

BETWEEN:

MICHAEL AND HELEN UDOWENKO
Applicants

AND:

RASEVI PTY LIMITED
First Respondent

ROBERT JOHN CRUICKSHANKS AND FLORENCE CHOO
Second Respondent

THE OFFICIAL TRUSTEE IN BANKRUPTCY
Third Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	21 AUGUST 2006
WHERE MADE:	SYDNEY

ORDERS AND UNDERTAKINGS

MICHAEL AND HELEN UDOWENKO UNDERTAKE TO THE COURT:

1.To do one of the following two things within one hundred and twenty (120) days from the date of the orders made in conjunction with this undertaking:

(a)pay Rasevi Pty Ltd (ACN 002 579 286) (‘Rasevi’) sums payable by them pursuant to orders, including costs orders, of the Supreme Court of New South Wales and any Court interest on such orders up to the time of payment; and

(b)pay into the trust account or controlled moneys account of their solicitors, Emery Partners, the amount payable under (a) above and commence and thereafter prosecute with due diligence proceedings in the Supreme Court of New South Wales seeking an order that orders made against them and in favour of Rasevi be set aside, with such sum to be held on trust (‘disputed sum’) pending the determination of those proceedings;

and in the case of (b), to the extent the Applicants are unsuccessful in those proceedings, pay such portion of the disputed sum as is properly payable having regard to the outcome of those proceedings to Rasevi together with interest earned on that portion of the disputed sum whilst it has been deposited in the solicitor’s trust account or controlled moneys account.

2.That they hereby irrevocably direct Emery Partners to disburse the disputed sum in accordance with these undertakings.

3.Insofar as Mr Alan Mitchell pursues the claim made by him against the Applicants in District Court of New South Wales proceedings no. 19 of 2000 within the next twelve (12) months, not to rely on a defence under the Limitations Act 1969 (NSW), laches or issue of judgment estoppel in answer to that claim.

4.For a period of twelve (12) months, not to seek to enforce orders against Mr Alan Mitchell made prior to today except by way of answer to any claim made by Mr Mitchell or to the extent to which the quantum of any sum payable to them exceeds the quantum of the sum accepted in proof of debt accepted by the Third Respondent

AND UPON THOSE UNDERTAKINGS BEING GIVEN THE COURT ORDERS THAT:

5.The evidence in one proceeding be evidence in the other.

6.To the extent necessary time be extended up to the end of 1 December 2005 to review Registrar Hedge’s decision made on 23 July 2002 in proceedings N7060 of 2002.

7.The orders…