Phisci Pty Ltd v Green Frog Nominees Pty Ltd [2008] FCA 638

FEDERAL COURT OF AUSTRALIA

Phisci Pty Ltd v Green Frog Nominees Pty Ltd [2008] FCA 638 PRACTICE AND PROCEDURE – interlocutory injunction – ownership of shares in dispute – application to restrain disposition – principles to be applied

Cope v Home [2002] NSWSC 777 David Lloyd & Co, Lloyd v David Lloyd & Co, In re (1877) 6 Ch D 339

PHISCI PTY LTD v GREEN FROG NOMINEES PTY LTD, OPES PRIME STOCKBROKING PTY LTD (RECEIVER AND MANAGER APPOINTED) (ADMINISTRATOR APPOINTED) ACN 086 294 028, JOHN ROSS LINDHOLM, PETER DAMIEN MCCLUSKEY and ADRIAN LAWRENCE BROWN

VID 265 of 2008

FINKELSTEIN J7 MAY 2008MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 265 of 2008

IN THE MATTER OF OPES PRIME STOCKBROKING PTY LTD (RECEIVER AND MANAGER APPOINTED) (ADMINISTRATOR APPOINTED) acn 086 294 028 BETWEEN: PHISCI PTY LTD

Plaintiff

AND: GREEN FROG NOMINEES PTY LTD,

OPES PRIME STOCKBROKING PTY LTD (RECEIVER AND MANAGER APPOINTED) (ADMINISTRATOR APPOINTED) ACN 086 294 028,

JOHN ROSS LINDHOLM,

PETER DAMIEN MCCLUSKEY

and ADRIAN LAWRENCE BROWN

Defendants

JUDGE: FINKELSTEIN J DATE OF ORDER: 8 MAY 2008

WHERE MADE: MELBOURNE

UPON EACH MEMBER OF THE SOUTHERN RESTAURANTS GROUP by its counsel undertaking to the Court: 1. To submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; 2. To pay the compensation referred to in (1) to the person there referred to; and 3. Not to take any further step in this action without the leave of a judge or the written consent of the administrators of the second defendant. THE COURT ORDERS THAT: 1. The plaintiff have leave to continue this proceeding against the first defendant. 2. Until the trial of the action or further order, the first defendant be and it hereby is restrained from transferring, selling, mortgaging, pledging, securing or otherwise dealing with the 1,230,593 shares in Restaurant Brands New Zealand Ltd purchased under CSN number 333 291 100. 3. Unless the plaintiff by 4.15pm on Wednesday 21 May 2008 pay $175,000 into Court to the credit of this action or provide an unconditional bank guarantee from an Australian trading bank in the sum of $175,000 in a form acceptable to the Registrar, the injunction granted in paragraph 2 be discharged.