FEDERAL COURT OF AUSTRALIA Tony Saad Pty Ltd (ACN 075 283 993) v Lift Capital Partners Pty Limited (In Liquidation) (ACN 111 015 500) [2010] FCA 195 Citation: Tony Saad Pty Ltd (ACN 075 283 993) v Lift Capital Partners Pty Limited (In Liquidation) (ACN 111 015 500) [2010] FCA 195 Parties: TONY SAAD PTY LTD (ACN 075 283 993) v LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500, LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) ACN 112 913 532, ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR and JOSEPH DAVID JAYES IN HIS CAPACITY AS LIQUIDATOR File number(s): NSD 57 of 2010; NSD 58 of 2010 Judge: EMMETT J Date of judgment: 26 February 2010 Legislation: Corporations Act 2001 (Cth) s 411 Dates of hearing: 27 November 2009; 3, 4, 5 and 8 February 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 2 Counsel for the Plaintiffs: RM Smith SC, MA Jones, GES Ng Solicitor for the Plaintiffs: Swaab Attorneys Counsel for the Defendants: IM Jackman SC with MR Tyson Solicitor for the Defendants: Allens Arthur Robinson IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 57 of 2010 BETWEEN: TONY SAAD PTY LTD (ACN 075 283 993) Plaintiff AND: LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500 First Defendant LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) ACN 112 913 532 Second Defendant ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR Third Defendant JOSEPH DAVID JAYES IN HIS CAPACITY AS LIQUIDATOR Fourth Defendant JUDGE: EMMETT J DATE OF ORDER: 26 FEBRUARY 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Plaintiff is to pay the costs of the Defendants in the proceeding. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 58 of 2010 BETWEEN: BACNET PTY LTD ACN 115 594 075 First Plaintiff BANCTRADE PTY LIMITED ACN 116 742 520 Second Plaintiff BIOVEST PTY LTD ACN 109 842 480 Third Plaintiff COLUMCILLE TRADING PTY LTD ACN 089 712 452 Fourth Plaintiff FAMBROS (AUST) PTY LTD ACN 062 907 868 Fifth Plaintiff FAMGROUP PTY LTD ACN 080 698 406 Sixth Plaintiff FAMTRUST PTY LTD ACN 073 114 520 Seventh Plaintiff FICTRADE PTY LTD ACN 098 744 391 Eighth Plaintiff HYPERTRADE PTY LTD ACN 082 085 578 Ninth Plaintiff JAMASCO PTY LTD ACN 116 543 741 Tenth Plaintiff JOSMAR PTY LTD ACN 003 934 245 Eleventh Plaintiff MLT TRADE PTY LTD ACN 117 845 735 Twelfth Plaintiff MUSGARD PTY LTD ACN 070 790 671 Thirteenth Plaintiff PAYTO PTY LTD ACN 060 491 063 Fourteenth Plaintiff PENNABROKER TRADING PTY LTD ACN 094 068 701 Fifteenth Plaintiff RENTO PTY LTD ACN 060 953 865 Sixteenth Plaintiff SHAREFUND PTY LTD ACN 081 342 869 Seventeenth Plaintiff STOCKNET PTY LTD ACN 075 798 373 Eighteenth Plaintiff TF TRADE PTY LTD ACN 100 880 939 Nineteenth Plaintiff TOAUST PTY LTD ACN 071 131 532 Twentieth Plaintiff TRADE 2 PTY LTD ACN 070 952 199 Twenty First Plaintiff TRADESHARE (AUST) PTY LTD ACN 123 169 497 Twenty Second Plaintiff TRADEX (AUST) PTY LTD ACN 131 379 173 Twenty Third Plaintiff TRITRADE PTY LTD ACN 061 213 223 Twenty Fourth Plaintiff VINANG PTY LTD ACN 082 546 549 Twenty Fifth Plaintiff AND: LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500 First Defendant LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) ACN 112 913 532 Second Defendant ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR Third Defendant JOSEPH DAVID JAYES IN HIS CAPACITY AS LIQUIDATOR Fourth Defendant JUDGE: EMMETT J DATE OF ORDER: 26 FEBRUARY 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Plaintiffs are to pay the costs of the Defendants in the proceeding. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 57 of 2010 BETWEEN: TONY SAAD PTY LTD (ACN 075 283 993) Plaintiff AND: LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500 First Defendant LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) ACN 112 913 532 Second Defendant ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR Third Defendant JOSEPH DAVID JAYES IN HIS CAPACITY AS LIQUIDATOR Fourth Defendant NSD 58 of 2010 BETWEEN: BACNET PTY LTD ACN 115 594 075 First Plaintiff BANCTRADE PTY LIMITED ACN 116 742 520 Second Plaintiff BIOVEST PTY LTD ACN 109 842 480 Third Plaintiff COLUMCILLE TRADING PTY LTD ACN 089 712 452 Fourth Plaintiff FAMBROS (AUST) PTY LTD ACN 062 907 868 Fifth Plaintiff FAMGROUP PTY LTD ACN 080 698 406 Sixth Plaintiff FAMTRUST PTY LTD ACN 073 114 520 Seventh Plaintiff FICTRADE PTY LTD ACN 098 744 391 Eighth Plaintiff HYPERTRADE PTY LTD ACN 082 085 578 Ninth Plaintiff JAMASCO PTY LTD ACN 116 543 741 Tenth Plaintiff JOSMAR PTY LTD ACN 003 934 245 Eleventh Plaintiff MLT TRADE PTY LTD ACN 117 845 735 Twelfth Plaintiff MUSGARD PTY LTD ACN 070 790 671 Thirteenth Plaintiff PAYTO PTY LTD ACN 060 491 063 Fourteenth Plaintiff PENNABROKER TRADING PTY LTD ACN 094 068 701 Fifteenth Plaintiff RENTO PTY LTD ACN 060 953 865 Sixteenth Plaintiff SHAREFUND PTY LTD ACN 081 342 869 Seventeenth Plaintiff STOCKNET PTY LTD ACN 075 798 373 Eighteenth Plaintiff TF TRADE PTY LTD ACN 100 880 939 Nineteenth Plaintiff TOAUST PTY LTD ACN 071 131 532 Twentieth Plaintiff TRADE 2 PTY LTD ACN 070 952 199 Twenty First Plaintiff TRADESHARE (AUST) PTY LTD ACN 123 169 497 Twenty Second Plaintiff TRADEX (AUST) PTY LTD ACN 131 379 173 Twenty Third Plaintiff TRITRADE PTY LTD ACN 061 213 223 Twenty Fourth Plaintiff VINANG PTY LTD ACN 082 546 549 Twenty Fifth Plaintiff AND: LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500 First Defendant LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) ACN 112 913 532 Second Defendant ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR Third Defendant JOSEPH DAVID JAYES IN HIS CAPACITY AS LIQUIDATOR Fourth Defendant JUDGE: EMMETT J DATE: 26 FEBRUARY 2010 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 8 February 2010 I made orders that these two proceedings be dismissed. At that stage, when an application for an order for costs was made on behalf of the defendants, counsel for the plaintiffs requested that consideration of that question be deferred until today. When the matter was called on today, the plaintiff requested a further adjournment on the basis that the transcription of my oral reasons for dismissing the proceedings had not become available. However, it is clear enough that the plaintiffs are aware of the basis of the dismissal, they having filed a notice of appeal from the orders. 2 No explanation was given as to why any further adjournment was required and why a costs order should not now be made, the plaintiffs in each proceeding, have been unsuccessful. There is no reason why costs should not follow the event. Accordingly, I propose to order the plaintiffs in each proceeding to pay the costs of the defendants in each proceeding. It may well be that there will be a question of overlap of costs between these proceedings and proceeding NSD 1308 of 2009 dealing with schemes of arrangement in relation to the two defendants. That will ultimately be a matter for the taxing officer if a dispute arises. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 8 March 2010