J P Morgan Portfolio Services Limited v Deloitte Touche Tohmatsu [2005] FCA 1640

FEDERAL COURT OF AUSTRALIA

J P Morgan Portfolio Services Limited v Deloitte Touche Tohmatsu [2005] FCA 1640

PRACTICE AND PROCEDURE – Strike out application – Action brought by company that had been sold and no longer had a financial interest in the litigation – Action financed by present owner of group of companies to which applicant belonged when cause of action arose – Whether proceeding constitutes abuse of the process of the Court. Fostif Pty Ltd v Campbells Cash and Carry Pty Ltd [2005] NSWCA 83, 18 ALR 166 followed Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr [2005] NSWCA 240 followed Clairs Keeley (a Firm) v Treacy (2005) 29 WAR 479 not followed

J P MORGAN PORTFOLIO SERVICES LIMITED v DELOITTE TOUCHE TOHMATSU, MOXLABIA PTY LTD, GREENWOOD CHALLONER & CO, ALLAN MARTIN DELANEY, A M DELANEY NOMINEES PTY LTD

NSD 1790 of 2004

WILCOX J 16 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1790 of 2004

BETWEEN: J P MORGAN PORTFOLIO SERVICES LIMITED

APPLICANT

AND: DELOITTE TOUCHE TOHMATSU

FIRST RESPONDENT

MOXLABIA PTY LTD

SECOND RESPONDENT

GREENWOOD CHALLONER & CO

THIRD RESPONDENT

ALLAN MARTIN DELANEY

FOURTH RESPONDENT

A M DELANEY NOMINEES PTY LTD

FIFTH RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 16 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Notice of Motion filed on 22 July 2005 be dismissed. 2. The applicants on the motion (respondents in the principal proceeding) pay the costs of the motion incurred by the respondent to the motion, J P Morgan Portfolio Services Limited. 3. The matter be listed for further directions at 9.30am on Thursday, 24 November 2005. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.