JUDGMENT No. KES Bod KE28, IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 3185 of 1995 GENERAL DIVISION ) Between: SANIRISE PTY LIMITED First Applicant CHRISTINE KELLY & FRANK NEJAD Second applicants FEDERAL COURT And: COURT & CO LIMITED OF AUSTRALIA Respondent 21 JAN 2003 * LIBRARY © ~ anna" REASONS FOR JUDGMENT EINFELD J SYDNEY 28 FEBRUARY 1996 By motion filed on 30 June 1995 the respondent seeks an order that the amended application filed in Court on 29 June, supported by statement of claim filed on the same date, should be summarily dismissed. The grounds are set out in written submissions which have been supplied by the solicitor for the respondent and there is no particular reason why I should repeat them now, except to say that I agree with the thrust of the submissions. The application sought to be struck out seeks two main orders. One is that the respondent be removed as the administrator of the applicant company, the second is that upon certain oy undertakings by the applicant, the respondent should be ordered to release to the applicant all the plant, equipment, stock and wt -2- other assets of the applicant company in the respondent's control or custody. There is no utility in such orders being made. Indeed, there is no possibility that they could be made, first, because | as a oe, matter of fact the respondent is no longer the gdvinistrator sof ¢ hood be ea - frst the applicant company and, second, because the goods referred te have already been disposed of by sale with the 'respondent' Having 4 a TAREE obtained the proceeds of sale and applied them to ene paymcht yt % ai creditors. Accordingly, the applications for those "Spasee' vould have to fail on the facts. The other two things sought in the application are an unspecified claim for damages and an unspecified claim for -interest. The applicant indicated through counsel today that it was willing to consent to an order that the proceedings be permanently stayed, but for my part, I can see no difference in Substance between a permanent stay and a dismissal, and of the two, in the facts of this case as outlined in the written submissions, dismissal seems to me to be the appropriate result. The other matters sought in the respondent's motion are no longer required or relevant, because they dealt with security for costs in the event that the proceedings were not dismissed. However, the respondent also seeks its costs of the motion and { i | | i ! = - 3 - in its submissions to the Court makes out a strong case for such an order. It has been one of the features of this litigation that the applicant company and the personal applicants have no assets of any substance at all that could be relied upon to pay any order for costs now made. But that is not a reason for not making such an order and no-one is more aware of the situation of the applicant company, at least, than the respondent. If he is willing to take an order for costs in the apparent certainty that he will not, at any rate in the foreseeable future, recover the costs, then there is no reason at all for this Court to stand in the way. Indeed, for the positive reasons referred to in the written submissions, the only conclusion that can be drawn is that the applicants have successfully drawn out these proceedings now for a very long time. The original application - the one before the Court now is an amendment - was filed on 24 April 1995, some 10 months ago. Although there have been some interlocutory orders and arrangements which have permitted the applicant company to consider its position and maximise its claim for any injustice while at the same time allowing the respondent to get on with his task under the administration and perhaps under the deed of company arrangement, there has never emerged, during the course a ~4- of these proceedings, any basis upon which the orders in the amended application could be made. 'For those reasons it is my decision that the proceedings by Sanirise Pty Limited and the two individual applicants, Kelly and Nijad, against John Vouros should be dismissed with costs, including any costs reserved on previous occasions. | certify that this and the 9 TWLEE preceding pages are a true copy of the Reasons for Judgment herein of his Honour Justice Einfeld Miers, Associate Datedr 2 F Apail 19792 ) A