Sutton Developments Pty Ltd v Nine West Melbourne Pty Ltd [2006] FCA 338

FEDERAL COURT OF AUSTRALIA Sutton Developments Pty Ltd v Nine West Melbourne Pty Ltd [2006] FCA 338 CORPORATIONS – leave to commence proceedings in the name of another company – whether conditions satisfied SUTTON DEVELOPMENTS PTY LTD v NINE WEST MELBOURNE PTY LTD VID 1579 of 2005 YOUNG J 22 FEBRUARY 2006 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1579 OF 2005

BETWEEN: SUTTON DEVELOPMENTS PTY LTD (ACN 051 406 832)

APPLICANT

AND: NINE WEST MELBOURNE PTY LTD (ACN 065 980 654)

RESPONDENT

JUDGE: YOUNG J

DATE OF ORDER: 22 FEBRUARY 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: Upon the Applicant ("Sutton"): (a) executing and delivering to the solicitors for the Respondent the deed poll annexed to these orders and undertaking by its Counsel to comply with it; and (b) undertaking by its Counsel to procure that all solicitors, barristers and witnesses (expert and lay) retained for Nine West Australia Pty Limited (ACN 065 208 077) ("NWA") in connection with proceedings 10115 of 2005 in the Supreme Court of Victoria ("Proceedings") render charges to Sutton only and not to NWA and agree not to seek payment from NWA in relation thereto, and confirm that their duties to NWA are in no way affected by entering into a retainer with Sutton, THE COURT ORDERS BY CONSENT THAT: 1. Sutton has leave, pursuant to s 237(2) of the Corporations Act 2001 (Cth) to proceed with the Proceedings in the name of and on behalf of NWA; 2. Sutton may not take any step in the Proceedings until the security referred to in the deed poll has been provided and the Trustee has agreed to comply with the matters referred to in clause 2 of the deed poll; 3. The Respondent's motion seeking an order that these proceedings be stayed pursuant to s 53 of the Commercial Arbitration Act 1984 (Vic) dated 15 December 2005 be dismissed; 4. There be no order as to the costs of the motion referred to in paragraph 3 above, or of the costs of these proceedings; 5. Liberty to apply is reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.