The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (In Liq) (No 8) [2008] FCA 326

FEDERAL COURT OF AUSTRALIA

The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (In Liq) (No 8) [2008] FCA 326

THE FOOD IMPROVERS PTY LTD (ACN 003 474 280) AND ANOR v BGR CORPORATION PTY LTD (ACN 059 820 807) AND ORS) NSD 1140 OF 2005

RARES J

29 FEBRUARY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1140 OF 2005

BETWEEN: THE FOOD IMPROVERS PTY LTD (ACN 003 474 280)

First Applicant

JOHN STEPHEN BAX

Second Applicant

AND: BGR CORPORATION PTY LTD (ACN 059 820 807)

First Respondent

THE TRIAD HEALTH PRODUCTS GROUP OF COMPANIES PTY LTD (ACN 002 688 897)

Second Respondent

CORDATO PARTNERS (SERVICES) PTY LTD (ACN 075 518 964)

Third Respondent

MAIN CAMP HOLDINGS PTY LIMITED (ACN 061 573 804)

Fourth Respondent

MAIN CAMP CORPORATION PTY LTD (ACN 054 989 516)

Fifth Respondent

SNP NATURAL PRODUCTS PTY LTD (ACN 094 464 490)

Sixth Respondent

ADVANCED TECHNOLOGY RESEARCH PTY LTD (ACN 088 655 163)

Seventh Respondent

BUSINESS & RESEARCH MANAGEMENT LIMITED (ACN 070 946 664)

Eighth Respondent

JUDGE: RARES J DATE OF ORDER: 29 FEBRUARY 2008

WHERE MADE: SYDNEY

THE COURT NOTES THAT:

1. The court notes that the only issue in dispute on the interlocutory process filed on 26 February 2008 is whether the first defendant should be repaid the whole of the sum of $486,540.17 which it paid or a sum net of GST in respect of order 1 made on 28 February 2007 representing 90% of all amounts paid by the first defendant for or in respect of the legal costs and disbursements of any of the defendants in the principal proceedings (the 90% costs order). 2. The second and third defendants agree that there is no defence to judgment being entered in the amount of $438,327.80 representing 90% of the legal costs and disbursements (excluding GST of $48,212.30) paid by the first defendant together with interest up to today which was the subject of the 90% costs order. THE COURT ORDERS THAT: 3. Order 5 made on 22 February 2008 be varied so as to read: Each defendant on the interlocutory process to file and serve written submissions on which it proposes to rely on or before 5 March 2008. 4. Order 6 made on 22 February 2008 be varied so as to read: The plaintiffs on the interlocutory process file and serve written submissions on which they propose to rely on or before 7 March 2008. 4. Pursuant to s 31A(1) of the Federal Court of Australia Act 1976 (Cth), there be judgment for BGR Corporation Pty Ltd (in liquidation) against the Triad Health Products Group of Companies Pty Ltd and Cordato Partners (Services) Pty Ltd in the amount of $438,327.80 representing the sum due pursuant to the 90% costs order together with interest up to and including today, less the sum of $48,212.30 being the amount of GST paid by the first defendant as part of the total of the costs it paid the subject of the 90% costs order. 5. The Triad Health Products Group of Companies Pty Ltd and Cordato Partners (Services) Pty Ltd pay the costs of BGR Corporation Pty Ltd (in liquidation) and its liquidator in relation to the interlocutory process filed on 26 February 2008, other than the costs of the issue concerning liability to repay the amount of GST, which costs are reserved. 6. The proceedings be listed for further directions at 9.30am on 6 March 2008. THE COURT DIRECTS THAT: 7. In the event that any party wishes to apply to vacate the hearing, they do so, and support their application with an affidavit (unless the hearing is to be vacated by consent) filed and served on or before 5 March 2008. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA