Visible Results Properties Inc v Sushi Train (Australia) Pty Limited [2005] FCA 322

FEDERAL COURT OF AUSTRALIA

Visible Results Properties Inc v Sushi Train (Australia) Pty Limited [2005] FCA 322 VISIBLE RESULTS PROPERTIES INC AND ANOR v SUSHI TRAIN (AUSTRALIA) PTY LIMITED NSD 460 of 2004 ALLSOP J 22 MARCH 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 460 of 2004

BETWEEN: VISIBLE RESULTS PROPERTIES INC

FIRST APPLICANT

VISIBLE RESULTS AUSTRALIA PTY LTD

SECOND APPLICANT

AND: SUSHI TRAIN (AUSTRALIA) PTY LIMITED

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 22 MARCH 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The matter be stood over to Monday, 18 April 2005 at 4.00 pm for the hearing of any motion that the applicant or respondent seek to bring. 2. Such notices of motion to be filed and served on or before 13 April 2005. 1. The respondent's costs of today be paid by the second named applicant on an indemnity basis and taxed forthwith. 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 460 of 2004

BETWEEN: VISIBLE RESULTS PROPERTIES INC

FIRST APPLICANT

VISIBLE RESULTS AUSTRALIA PTY LTD

SECOND APPLICANT

AND: SUSHI TRAIN (AUSTRALIA) PTY LIMITED

RESPONDENT

JUDGE: ALLSOP J

DATE: 22 MARCH 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this matter the applicant has chosen to ignore orders that the Court made in December 2004 for the further preparation of the matter. During the course of the period over which those orders were ignored it has become evident that the first applicant has been struck off the Register in the United States of America where it was incorporated. That apparently occurred prior to the proceedings being commenced. I am informed by counsel for the second applicant, who has hitherto sought to appear for the first applicant, the result of those circumstances is that the first named applicant was, prior to the proceeding, dissolved. 2 An oral application is made by counsel for the respondent to strike out the proceedings insofar as they purport to be brought by a company named as the first applicant. There was sent to my chambers various decisions of the New South Wales Supreme Court and the Federal Court of Australia in support of that. 3 Difficult issues may arise as to the assignment made to the second applicant. Notwithstanding the identity of counsel in the Supreme Court matter that successfully made the application, I do not propose to move on an oral motion today in that matter. However, when this matter does come back before me in circumstances which I will identify shortly, the parties should be under no misapprehension that prima facie there is no application before the Court by any person other than the second applicant. If the concession made by counsel today be accurate that seems to me to be the only conclusion that one can presently draw and I propose to deal with the matter henceforth on that basis. 4 It may be that thereby that the respondent is entitled today to an order for the striking out of the proceedings insofar as the proceedings are brought by the first applicant. As a matter of logic there is some real force in that. There has been enough confusion in this matter without adding to it by proceeding on an oral motion and risking taking steps that overlook some aspect of the matter. 5 Steps are being taken to reinstate the company in the United States. My commitments in the coming weeks are very tight. However, what I propose to do is list this matter on the afternoon of Monday, 18 April 2005 at 4.00 pm for the bringing of any motion or application that either the second applicant, any third party or the respondent seeks to bring. Such notices of motion are to be filed and served with supporting evidence on or before 13 April 2005 and the parties may identify to the Registry a return date of 4.00 pm on Monday, 18 April 2005. 6 The respondent's costs of today will be paid by the second applicant on an indemnity basis. They may be taxed forthwith. If there is any difficulty in the obtaining of those costs on an indemnity basis application may be made in relation to any other party to pay those costs that the respondent is so advised is appropriate. 7 The matter is stood over to 4.00 pm on 18 April 2005 for the hearing and resolution of those motions. I have said what I wanted to say earlier about the Court's orders being ignored. I do not propose to indicate what will happen on the next occasion that that happens but I consider it to be a species of contempt and it should not happen. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.