McIntosh & Co Holdings Ltd v Pyramid Technology Corp Ltd & Anor [1996] FCA 844

LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 389 of 1994 ) GENERAL DIVISION )

BETWEEN: McINTOSH & CO HOLDINGS LIMITED Applicant AND: PYRAMID TECHNOLOGY CORPPORATION LIMITED First respondent PYRAMID TECHNOLOGY CORPORATION INC Second respondent CORAM: BEAUMONT J. DATE: 30 AUGUST 1996 MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The notice of motion filed 9 February 1995 be dismissed. 2. Costs of the motion to be costs in the principal proceeding. 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 ) No. G 389 of 1995 ) GENERAL DIVISION )

BETWEEN: McINTOSH & CO HOLDINGS LIMITED Applicant AND: PYRAMID TECHNOLOGY CORPPORATION LIMITED First respondent PYRAMID TECHNOLOGY CORPORATION INC Second respondent CORAM: BEAUMONT J. DATE: 30 AUGUST 1996 REASONS FOR JUDGMENT This is a motion by the second respondent, Pyramid Technology Corporation Inc. (Pyramid Inc.") to set aside an order made by Lindgren J on 13 October 1994 in which his Honour granted leave to serve process out of the jurisdiction and in the United States of America. His Honour gave short reasons on that date for making the order which was made ex parte. His Honour there pointed out that, under O.8 r.2, service outside the Commonwealth of an originating process is not valid unless it is with the prior leave of the Court. Order 8 r.2 stipulates three conditions which must be satisfied before that leave is granted. His Honour said that he was satisfied that the proceeding was one in which the Court has jurisdiction and was one to which r.1 of O.8 applies but that the third condition, namely, that the Court be satisfied that the applicant McIntosh & Co. Holdings Limited ("McIntosh") has a prima facie case for the relief sought against Pyramid Inc., gave rise to difficulty. His Honour referred to the circumstance that, subsequent to the initial application for leave, McIntosh filed substantial further evidence. His Honour did not describe that evidence in detail but referred to the following aspects of it: the advertising in Australia by Pyramid Inc.; the fact that the first respondent was a wholly owned subsidiary of Pyramid Inc.; the fact that there was at least one director in common; the fact that there was, at the relevant time, a close relationship of co-operation between the respondents of an ongoing nature; the fact that Pyramid Inc. promoted itself in Australia as operating in the Asia Pacific region through the first respondent's premises in Chatswood, Sydney, and the fact that the first respondent was an instrument of Pyramid Inc. and subject to its control and direction. By notice of motion dated 9 February 1995, Pyramid Inc. seeks an order that service of process upon Pyramid Inc. be set aside, a declaration that the Court has no jurisdiction to hear and determine these proceedings against Pyramid Inc. and finally, an order dismissing the application as against Pyramid Inc. It appears that the notice of motion has been brought pursuant to the provisions of O.9, r.7. In any event there is no doubt that the Court has jurisdiction to entertain Pyramid Inc.'s motion. Since Lindgren J dealt with the matter there have been a number of developments. First of all, a substantial body of affidavit evidence has been filed on behalf of McIntosh. An index to that affidavit material is contained in MFI4 and need not be repeated here. Further, McIntosh has, by leave granted on 18 March 1996, filed on 26 March 1996 an amended version of its statement of claim. Although the material before Lindgren J was more limited in terms of evidence and in terms of the claims made in McIntosh's pleading, the particular aspects of the evidence then before his Honour remain true and I propose to accept those findings for present purposes. Indeed, they are if anything reinforced in the affidavit material subsequently filed and identified in MFI4. In fairness to Mr Cotman who appeared for Pyramid Inc., it should be noted that in the course of argument before me he did indicate that there was some evidence that Pyramid Inc. was carrying on business in Australia. The real thrust of his submission was that there was simply no evidence that even a prima facie case against Pyramid Inc. had been made out.