Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd

[2005] FCA 1062

FEDERAL COURT OF AUSTRALIA

Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1062

WALTER RAU NEUSSER OEL UND FETT AG v CROSS PACIFIC TRADING LTD AND ORS
NSD 432 of 2005

ALLSOP J
29 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 432 of 2005

BETWEEN:

WALTER RAU NEUSSER OEL UND FETT AG
APPLICANT

AND:

CROSS PACIFIC TRADING LTD
FIRST RESPONDENT

PATRICK SHUNG WONG
SECOND RESPONDENT

WILLEM JOHAN VAN VLYMEN
THIRD RESPONDENT

ORBIS COMMODITIES PTY LIMITED
FOURTH RESPONDENT

INTERNATIONAL COMTRADE & SHIPPING LIMITED
FIFTH RESPONDENT

RUSSELL ISLAND PLANTATION ESTATES LIMITED
SIXTH RESPONDENT

KAY LITTLE JOHN
SEVENTH RESPONDENT

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
EIGHTH RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

29 JULY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Time be extended for the filing and serving of any application for leave to appeal under O 52 r 10 of the Federal Court Rules from the orders of Allsop J made on 18 July 2005 up to an including 24.00 hours on the day of delivery of judgment for the application for stay or until further order.

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	NSD 432 of 2005

BETWEEN:

WALTER RAU NEUSSER OEL UND FETT AG
APPLICANT

AND:

CROSS PACIFIC TRADING LTD
FIRST RESPONDENT

PATRICK SHUNG WONG
SECOND RESPONDENT

WILLEM JOHAN VAN VLYMEN
THIRD RESPONDENT

ORBIS COMMODITIES PTY LIMITED
FOURTH RESPONDENT

INTERNATIONAL COMTRADE & SHIPPING LIMITED
FIFTH RESPONDENT

RUSSELL ISLAND PLANTATION ESTATES LIMITED
SIXTH RESPONDENT

KAY LITTLE JOHN
SEVENTH RESPONDENT

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
EIGHTH RESPONDENT

JUDGE:	ALLSOP J
DATE:	29 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter on 18 July I made orders discharging worldwide freezing orders that I had made on 21 March 2005.  I did so for the reasons I published on that day.  I expressed the view that the heavy burden on ex parte applicants of complete disclosure had not been complied with for the reasons as I said in that judgment.

2. The applicant in the proceedings who obtained the orders on 21 March and who had them discharged on 18 July is considering an application for leave to appeal.  The matter, that is the controversy before me, is somewhat complex in its procedural state.  I have before me at the moment for my consideration questions of mutual stays under first the International Arbitration Act 1974 (that application being brought by the respondents), and secondly a stay of the arbitration sought by the applicant.

3. Depending upon the orders that I make in relation to those applications it is conceivable that only part, or indeed none of the matters might be stayed.  Alternatively it is also conceivable that the whole matter might be stayed.  They are the relevant contentions of the parties.  I have not yet finalised my consideration of the matter but hope to do so by the end of next week even if by the end of next week the judgment is not handed down I would anticipate having made up my mind what orders to make and I will either inform the parties of those orders or simply be in a position early the following week to make my orders on those applications.

4. Mr Street's submissions, which I broadly accept, are that in the interests of the efficient dealing with this matter there is a significant interrelationship between the application for leave to appeal against my orders of 18 July and the balance of the proceedings.  If I do not extend time to link the timing of leave to appeal from the next set of orders to these sets of orders then an application for leave to appeal needs to be made on Monday, 1 August to which time the parties have agreed that there be an extension.  That may lead to an unnecessary expenditure of costs on the part of the applicant.  In the overall scheme of things in this case that may not be large.  Nevertheless costs are costs. 

5. More importantly, if I may say so, it will require officers of this Court both non-judicial and judicial to begin processing an application for leave to appeal.  An application for leave to appeal could be made before me.  However I do not think it would be appropriate to require that to occur given the nature of the reasons for judgment.  One way of dealing with the matter may be not to extend the time, require documents to be filed by Monday but for me to make an order that no step be taken by any party in the prosecution of the application for leave.  It seemed to me that if I were to make that order I would simply be requiring the applicant to pay for Ebsworth & Ebsworth to process various documents which may not be necessary to be processed. 

6. What I propose to do is to extend time for the filing and serving of any application for leave to appeal from my orders on 18 July up to midnight, that is 2400 hours, on the day of delivery of my orders in relation to the stay applications.  Then when the terms of those orders are clear the parties can then consider at the time that the orders are handed down what the appropriate course is.  Therefore I extend time for filing and serving of any application for leave to appeal under Order 52, rule 10, from the orders of myself made on 18 July up to 2400 hours on the day of the delivery of judgment in the applications for a stay or until further order.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             6 September 2005

Counsel for the Applicant:	Mr A W Street SC with Mr J A N Hogan-Doran
Solicitor for the Applicant:	Ebsworth & Ebsworth
Counsel for the Respondents:	Mr M S Jacobs QC & Mr P J Bambagiotti
Solicitor for the Respondents:	Alexander & Associates
Date of Hearing:	29 July 2005
Date of Judgment:	29 July 2005