Van Der Velde v Ng (No. 2) - [2009] FCA 538

FEDERAL COURT OF AUSTRALIA
Van Der Velde v Ng (No. 2) [2009] FCA 538
CORPORATIONS – consideration of an application to strike out a proceeding on the ground of a failure to prosecute the proceeding in the context of a series of orders made by the Court – consideration of an application for leave to deliver a Further Amended Statement of Claim – consideration of the limitation period for the purposes of s 588FF(3) of the Corporations Act 2001 (Cth)
PRACTICE AND PROCEDURE – consideration of an application to strike out a proceeding and an application for leave to deliver an Further Amended Statement of Claim
Corporations Act 2001 (Cth), Division 2 of Pt 5.7B, ss 588FF(1), 588FF(3)
Van Der Velde v Ng [2009] FCA 529 – cited and quoted
Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 - cited
Welsh v Digilin Pty Ltd (2008) FCAFC 149; (2008) 250 ALR 13 – cited
Spotwire Pty Ltd v Visa International Service Association Inc. [2003] FCA 762 - cited
SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 - cited
Douglas v Tickner (1994) 49 FCR 507 - cited
Orchard v Comrie (1998) 80 IR 76 - cited
Global Brand Marketing Inc. v Cube Footwear Pty Ltd [2005] FCA 479) - cited
TERRY VAN DER VELDE AND DAVID STIMPSON and RIBY PTY LTD (ACN 081 153 219) IN LIQUIDATION AS TRUSTEE FOR THE JADE TRUST v KYM HON YOKE NG, THE OFFICIAL TRUSTEE AS TRUSTEE OF THE PROPERTY OF ROSS HASTINGS (A BANKRUPT) and RAMS MORTGAGE CORPORATION LIMITED ABN 48 065 912 932
QUD405 of 2007
GREENWOOD J
22 MAY 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD405 of 2007

BETWEEN:
TERRY VAN DER VELDE AND DAVID STIMPSON
First Applicant

RIBY PTY LTD (ACN 081 153 219) IN LIQUIDATION AS TRUSTEE FOR THE JADE TRUST
Second Applicant

AND:
KYM HON YOKE NG
First Respondent

THE OFFICIAL TRUSTEE AS TRUSTEE OF THE PROPERTY OF ROSS HASTINGS (A BANKRUPT)
Second Respondent

RAMS MORTGAGE CORPORATION LIMITED
ABN 48 065 912 932
Third Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

22 MAY 2009

WHERE MADE:

BRISBANE

UPON THE UNDERTAKING OF Mr Peter Vincent Mills, Solicitor and Partner of the firm Mills Oakley, Solicitors for the first and second applicants in the proceeding, given to the Court, to conduct and prosecute this proceeding with all due diligence subject to any decision of the liquidator to discontinue the proceeding,
THE COURT ORDERS THAT:
1.The Notice of Motion filed by the applicants on 11 May 2009, the Notice of Motion filed by the third respondent on 15 May 2009 and the Notice of Motion filed by leave on 21 May 2009 by the first respondent, are adjourned.

2.The applicants shall pay the respondents’ costs of and incidental to the adjournment of each Notice of Motion referred to in Order 1 on a solicitor client basis.
3.Pursuant to Order 62, rule 9, Mr Peter Vincent Mills in his capacity as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Van Der Velde v Ng (No. 2)

Details

AGLC: Van Der Velde v Ng (No. 2) [2009] FCA 538
Case: [2009] FCA 538
Decision Date: 22 May 2009

CaseChat Overview and Summary

The parties involved in Van Der Velde v Ng (No. 2) were the applicants, represented by Mills Oakley Lawyers, and the respondents, who were being pursued on behalf of a liquidator. The applicants sought various procedural orders, including the adjournment of certain motions, reimbursement of costs, and the filing of an amended statement of claim. The dispute centred on the management and conduct of a legal proceeding initiated on behalf of a liquidator, with issues pertaining to the costs incurred and the continuation of the litigation.

The legal issues before the court included whether the applicants should be required to pay the respondents' costs for the adjournment of motions, the appropriateness of reimbursing certain costs to the applicants, the necessity for the applicants to file an amended statement of claim by a specified date, and the overall management of the proceeding in terms of its continuation and prosecution by the liquidator. Additionally, the court had to consider the respondents' entitlement to costs and the liberty for the parties to apply for further orders.

The court found that the applicants should be required to pay the respondents' costs for the adjournment of motions, as the applicants had not provided sufficient grounds to justify the adjournments. However, the court ordered the reimbursement of certain costs to the applicants, recognising that they were not at fault for the costs incurred. Furthermore, the applicants were directed to file an amended statement of claim within a set timeframe to ensure the proceeding could progress effectively. The court also scheduled a directions hearing and required the liquidator to provide an affidavit confirming the commitment to prosecute the proceeding diligently.

The orders issued by the court included the adjournment of the relevant notices of motion, the payment of costs by the applicants to the respondents, the reimbursement of certain costs to the applicants, the requirement for the applicants to file an amended statement of claim, the scheduling of a directions hearing, and the need for the liquidator to affirm the commitment to prosecute the proceeding. The court also granted the first respondent leave to file a specific notice of motion and allowed for further applications by the parties.

Orders

Orders of the court

1. The Notice of Motion filed by the applicants on 11 May 2009, the Notice of Motion filed by the third respondent on 15 May 2009 and the Notice of Motion filed by leave on 21 May 2009 by the first respondent, are adjourned.

2. The applicants shall pay the respondents’ costs of and incidental to the adjournment of each Notice of Motion referred to in Order 1 on a solicitor client basis.

3. Pursuant to Order 62, rule 9, Mr Peter Vincent Mills in his capacity as a Partner of the firm Mills Oakley Lawyers of Level 2, 217 George Street, Brisbane shall re‑pay to the applicants the costs the subject of Order 2 of these orders.

4. By 4.00pm on 22 June 2009, the applicants shall file in the Court and serve on the respondents an affidavit sworn by either Mr David Stimpson or Mr Terry Van Der Velde exhibiting an amended statement of claim described as a Second Further Amended Statement of Claim, settled by counsel.

5. The proceeding shall be listed for directions at 9.30am on 29 June 2009.

6. Within 14 days of the making of these orders, the applicants shall file an affidavit sworn by either Mr Van Der Velde or Mr Stimpson by which the deponent on behalf of the liquidator advises the court that the liquidator will prosecute this proceeding commenced on behalf of the liquidator by Mills Oakley Lawyers, with all due diligence, subject to any advice the liquidator may receive to discontinue the proceeding.

7. The first respondent is given leave to file the Notice of Motion made returnable at 9.30am on 21 May 2009 which was heard and determined together with the applicants’ Notice of Motion filed on 11 May 2009 and the Notice of Motion of the third respondent filed on 15 May 2009.

8. The costs the subject of order 2 shall, pursuant to Order 62, rule 3 of the Federal Court Rules, be paid forthwith, notwithstanding that the proceeding is not concluded.

9. The parties have liberty to apply on three days notice.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GREENWOOD J

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Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD405 of 2007

JUDGE:	GREENWOOD J
DATE OF ORDER:	22 MAY 2009
WHERE MADE:	BRISBANE