FEDERAL COURT OF AUSTRALIA Owston Nominees No 2 Pty Limited v Branir Pty Limited [2003] FCA 519 OWSTON NOMINEES NO 2 PTY LIMITED & ANOR v BRANIR PTY LIMITED & ORS NG 3184 of 1995 ALLSOP J 23 MAY 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 3184 OF 1995 BETWEEN: OWSTON NOMINEES NO 2 PTY LIMITED (ACN 001 769 099) FIRST APPLICANT WARREN PERRY ANDERSON SECOND APPLICANT AND: BRANIR PTY LIMITED (ACN 061 718 876) FIRST RESPONDENT TOVEHEAD PTY LIMITED (ACN 003 745 140) SECOND RESPONDENT ABURIZAL BAKRIE THIRD RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 23 MAY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The notice of motion be dismissed. 2. The applicant to the notice of motion (the respondents to the proceedings) pay the costs of the respondents to the notice of motion (the applicants to the proceedings). 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 NG 3184 of 1995 BETWEEN: OWSTON NOMINEES NO 2 PTY LIMITED (ACN 001 769 099) FIRST APPLICANT WARREN PERRY ANDERSON SECOND APPLICANT AND: BRANIR PTY LIMITED (ACN 061 718 876) FIRST RESPONDENT TOVEHEAD PTY LIMITED (ACN 003 745 140) SECOND RESPONDENT ABURIZAL BAKRIE THIRD RESPONDENT JUDGE: ALLSOP J DATE: 23 MAY 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter the first, second and third respondents in matter number NG3184 of 1995 have filed a notice of motion returnable instanter seeking the following orders: 1. that the directions made on 2 April 2003 be vacated; 2. that the hearing date of 10 June 2003 be vacated; and 3. that the matter be stood over for further directions for mention during the week commencing 14 July 2003. Other consequential orders were sought. 2 The motion arises in the following way. The matter is listed for hearing on 10 June 2003 to deal with some not straightforward applications concerning the boundaries of the properties and the rights of the parties in connection with the property "Tipperary", which was the subject of the first instance hearing before Einfeld J. I was a member of the Full Bench which dealt with this matter in 2001. The matter came back before me last year because of a dispute about, amongst other things, a mango plantation. There is a debate between the parties as to whether the boundaries to this mango plantation have been dealt with in the reasons for judgment, and implicitly in the orders, of the learned primary judge. The matter was not the subject of any debate on appeal. 3 I do not wish to set out the history of these issues since they were raised late last year. Some considerable time of myself, counsel and solicitors has been spent ascertaining and deliberating upon the precise nature of the applications involved, the jurisdiction of the court and the relevant evidence concerning them. It has not been an easy task. It has not been aided, I think, by the fact that primary interests behind the corporate entities involved, being Mr Anderson and Mr Bakrie, by this stage in their relationship, do not appear to be able to resolve this matter amicably or commercially. That is not a personal criticism of them. They have been in litigation for some time. They have fallen out. In part that is the way of the world. I should also add that none of those comments reflect in any way on the legal practitioners involved for both sides. 4 Mr Bakrie now, apparently, has arranged a conditional contract which gives some ground to expect that he will be removed as a shareholder from the two principal companies involved in the remaining matters in this Court, Tovehead Pty Ltd and Branir Pty Ltd. By reason of that share sale, if it completes, Mr Bakrie will remove himself from this dispute. However, Tovehead and Branir, the separate corporate entities, will not be removed from the dispute. 5 Mr Kunç, perfectly correctly, puts to me that the future owners of Tovehead and Branir may or may not want to pursue this litigation. I accept that. However, I do not have any evidence before me of the willingness of those prospective purchasers to abandon this litigation on terms that might save the parties and the Court any time. I do not have any evidence before me that they have been apprised of the detail of it. 6 In the absence of some reasonable assurance, (a) of the likelihood of the sale proceeding and, (b) the likelihood that the purchasers will be able to reach an accommodation with the Anderson interests sufficiently prior to 10 June to avoid the necessity of the parties and the Court expending time and money in the debate, I do not propose at this stage, now almost mid-way through 2003, to adjourn the hearing. 7 It may be that what I have said might provoke further facts which might lead to an agreeable accommodation whereby the matter can be stood over. However, the due administration of justice demands in my view that this matter be brought to completion as soon as possible. Mr Anderson and his interests are entitled to see that happen. If there is no agreed vacation of that date then the matter will be proceeding. 8 I dismiss the motion. 9 I order that the applicant to the motion, that is the first, second and third respondents to the proceedings pay the costs of the respondents to the motion, that is, the applicants to the proceedings. 10 Mr Kunç renews his application to vacate the date on the basis that the further motion and affidavit material contemplated by order 1 of the orders of 2 April 2003 cannot be filed in time. That further motion was of a character just identified by Mr Kunç on the transcript, which I won't repeat, but I don't propose to vacate the hearing date of 10 June 2003. 11 One thing that could be said about both sides in this dispute is that they are mature, adult (in the general sense) commercial interests. Mr Bakrie and his interests have known of those directions since 2 April 2003. 12 This matter is proceeding on 10 June 2003. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 2 June 2003 Counsel for the Applicant: D Robinson Solicitor for the Applicant: Holding Redlich Counsel for the Respondent: F Kunç Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 23 May 2003 Date of Judgment: 23 May 2003