Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Capena Contracting Pty Limited, in the matter of; McGrath v Capena Contracting Pty Limited [2009] FCA 665
ANTHONY GREGORY MCGRATH, JOSEPH DAVID HAYES and SHAUN ROBERT FRASER v CAPENA CONTRACTING PTY LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) and MAUNSELL AUSTRALIA PTY LTD
NSD 1115 of 2008
PERRAM J
18 JUNE 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1115 of 2008
BETWEEN: ANTHONY GREGORY MCGRATH
First Applicant
JOSEPH DAVID HAYES
Second Applicant
SHAUN ROBERT FRASER
Third Applicant
AND: CAPENA CONTRACTING PTY LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
First Respondent
MAUNSELL AUSTRALIA PTY LTD
Second Respondent
JUDGE: PERRAM J
DATE OF ORDER: 4 DECEMBER 2008
WHERE MADE: SYDNEY
UPON THE SECOND RESPONDENT, BY ITS COUNSEL, UNDERTAKING: (a) to diligently prosecute the proceedings BS 6761 of 2007 in the Supreme Court of Queensland; and (b) not to seek to enforce any judgment which it might obtain against Capena Contracting Pty Ltd (Subject to Deed of Company Arrangement) in proceedings BS 6761 of 2007 in the Supreme Court of Queensland without the prior leave of the Court, THE COURT ORDERS THAT: 1. Service of the Amended Originating Process filed by the Applicants be dispensed with, other than upon the Second Respondent. 2. Service of the Interlocutory application filed by the Second Respondent on 7 August 2008 be dispensed with, other than upon the Applicants. 3. Pursuant to section 447A of the Corporations Act, Part 5.3A of the Corporations Act is to operate in relation to Capena Contracting Pty Limited (subject to a deed of company arrangement) so that the time for lodgement of the Maunsell Proof (as defined in Schedule 1 to these orders) be extended beyond the time allowed by clauses 4.2, 4.3 and 4.4 of the Mining Pool Deed of Company Arrangement. 4. The Second Respondent has leave of the Court pursuant to section 444E(3) of the Corporations Act to bring proceedings against Capena Contracting Pty Ltd (subject to Deed of Company Arrangement), seeking contribution in respect of any liability the Second Respondent may be held to have to the Plaintiffs in respect of the claims made in proceedings BS 6761 of 2007 in the Supreme Court of Queensland. 5. Pursuant to section 447A of the Corporations Act, Part 5.3A of the Corporations Act is to operate in relation to the Mining Pool Entities set out in Schedule 2 to these orders ("Schedule 2") as if the reference to Subdivision "E" in each of: (a) paragraph 8 of Schedule 8A of the Corporations Act; and (b) paragraph 3 of Schedule 4 of the Mining Pool Deed of Company Arrangement,
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