Intertax Property Investments Pty Ltd v Karger [2007] FCA 928

FEDERAL COURT OF AUSTRALIA

Intertax Property Investments Pty Ltd v Karger [2007] FCA 928 CORPORATIONS LAW – consideration of an application by liquidators of the applicant for leave to discontinue the proceedings INTERTAX PROPERTY INVESTMENTS PTY LTD v PAUL KARGER & ORS QUD101 OF 2005

GREENWOOD J

15 JUNE 2007

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD101 OF 2005

BETWEEN: INTERTAX PROPERTY INVESTMENTS PTY LTD

Applicant

AND: PAUL KARGER & ORS

Respondent

JUDGE: GREENWOOD J

DATE OF ORDER: 15 JUNE 2007

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The applicant be granted leave to discontinue the proceedings. 2. There shall be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD101 OF 2005

BETWEEN: INTERTAX PROPERTY INVESTMENTS PTY LTD

Applicant

AND: PAUL KARGER & ORS

Respondent

JUDGE: GREENWOOD J

DATE: 15 JUNe 2007

PLACE: BRISBANE

EX TEMPORE REASONS FOR JUDGMENT 1 By this application, the liquidators of the applicant seek leave to discontinue proceedings pursuant to O 22, r 2(1)(d) of the Federal Court Rules. The brief background facts are that on 25 August 2006, the Supreme Court of Queensland ordered that the applicant in the proceedings be wound up and that Matthew Leslie Joiner and Gerald Thomas Collins be appointed as liquidators. The liquidators have considered the proceedings before this Court and have formed the view that it is not in the best interests of the creditors of the applicant company that the proceedings be pursued. Accordingly, the liquidators seek leave to discontinue the proceedings. The proceedings are made up of a large number of parties. 2 The background to the various orders made in the proceedings to date is briefly this. On 14 April 2005, the application was filed naming the first eight respondents. On 15 April 2005, the ninth to 12th respondents were joined by order of Kiefel J. On 27 May 2005, judgment was entered for the applicant against the fifth respondent. On 30 August 2005, the applicant discontinued the proceedings against the fourth, eighth, 10th and 11th respondents. On 6 September 2005, the applicant filed a statement of claim against the first, second, third, ninth and 12th respondents. 3 On 13 April 2006, the applicant discontinued the proceedings against the first, third and ninth respondents. Although named in the proceedings, the proceedings do not appear to have been pursued against the 6th and 7th respondents. Consequently, the proceedings remain on foot only in respect of the second and 12th respondents. The application is supported by an affidavit of Damien Roger Butler filed 3 May 2007 and an affidavit of Meredith Bennett deposing to service of the application on the second and 12th respondents. At to the 12th respondent, the position is that on 27 April 2007, the 12th respondent was deregistered by the Australian Securities and Investment Commission ('ASIC'). In response to being served with the current application, ASIC indicated that it does not oppose the application nor the orders sought by the application. 4 The applicant has not received any response from the second respondent and the second respondent has not appeared before the Court this morning. The second and 12th respondents filed a defence in the proceeding on 30 September 2005 and an amended defence on 1 November 2005. I am satisfied, for the purposes of the rule that leave ought to be given to discontinue the proceedings. I am also satisfied that the appropriate order in the circumstances is that there ought to be no order as to costs. The discontinuance of the proceedings by the liquidators is due to their objective assessment of the merits of the proceeding and the step to be taken to best serve the interests of the creditors. Accordingly, 5 I will make no order as to costs and grant leave to discontinue the proceedings. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.