Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753

FEDERAL COURT OF AUSTRALIA

Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd

[2006] FCA 753

PRACTICE AND PROCEDURE – claim against mortgagee for unconscionable conduct in sale of business – claim against solicitors for accessorial liability in placing advertisement for sale of business – strikeout application by solicitors Held – claim against solicitors dismissed – mere preparation of documents by a solicitor cannot create accessorial liability without any further participation in the impugned conduct WORDS & PHRASES – "no reasonable prospect of successfully prosecuting the proceeding" Trade Practices Act 1974 (Cth) s 75B(1) Federal Court of Australia Act 1976 (Cth) s 31A Federal Court Rules O 20 r 2, O 11 r 6, O 62 r 9(1)(d) Duncan v Lipscombe Child Care Services Incorporated [2006] FCA 458 cited Dey v Victorian Railways Commissioners (1948) 78 CLR 62 distinguished General Steel Industries Incorporated v Commissioner for Railways (New South Wales) (1964) 112 CLR 125 distinguished Yorke v Lucas (1985) 158 CLR 661 applied LAWRENSON LIGHT METAL DIE CASTING PTY LTD (in liq) v COSMICK PTY LTD & ORS VID 1512 of 2005 HEEREY J 18 MAY 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1512 OF 2005

BETWEEN: LAWRENSON LIGHT METAL DIE CASTING PTY LTD (in liq)

APPLICANT

AND: COSMICK PTY LTD

FIRST RESPONDENT

WILLIAM GRAHAM

SECOND RESPONDENT

MELBOURNE GRAVITY PTY LTD

THIRD RESPONDENT

ALEXANDER MCGREGOR

FOURTH RESPONDENT

KALUS KENNY SOLICITORS

FIFTH RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 18 MAY 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The proceeding against the fifth respondent is dismissed; 2. The applicant pay the fifth respondent's costs of the proceeding, including reserved costs and the costs of the amended notice of motion, on an indemnity basis; 3. The applicant's solicitors indemnify the fifth respondent against non-payment of such costs.