Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd (under administration) [2010] FCA 668

FEDERAL COURT OF AUSTRALIA

Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd (under administration) [2010] FCA 668 Citation: Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd (under administration) [2010] FCA 668

Parties: DELNORTH PTY LTD ACN 051 954 977 v DURA-POST (AUST) PTY LTD ACN 101 287 512 (UNDER ADMINISTRATION)

File number: NSD 378 of 2006

Judge: YATES J

Date of judgment: 25 June 2010

Cases cited: Delnorth v Dura-Post (Aust) Pty Ltd [2008] FCA 1225; (2008) 78 IPR 463

Date of hearing: 3, 25 June 2010

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 28

Counsel for the Applicant: Mr D P M Ash

Solicitor for the Applicant: Spruson & Ferguson Lawyers

Counsel for the Respondents to the Motion: Mr M B Holmes

Solicitor for the Respondents to the Motion: McLachlan Thorpe Partners

Counsel for the Respondent: The respondent to the principal proceeding did not appear

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 378 of 2006

BETWEEN: DELNORTH PTY LTD ACN 051 954 977

Applicant

AND: DURA-POST (AUST) PTY LTD ACN 101 287 512 (UNDER ADMINISTRATION)

Respondent

JUDGE: YATES J

DATE OF ORDER: 25 June 2010

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Upon the undertakings being given today by Delnorth Pty Ltd and Roadside Products Pty Ltd, the undertakings given to the Court on 9 July 2009 by Delnorth Pty Ltd and Roadside Products Pty Ltd are discharged as to their future operation. For the avoidance of doubt, this order does not discharge and does not affect the operation of those undertakings for the period 9 July 2009 to 25 June 2010 inclusive. 2. The applicant's notice of motion dated 5 May 2010 be dismissed. 3. The applicant pay the costs of the respondents to the motion. THE COURT NOTES THE UNDERTAKINGS GIVEN TO THE COURT TODAY IN THE FOLLOWING TERMS: SCHEDULE 1 UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT 1. The Applicant undertakes 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) affected by the operation of the undertakings provided by Roadside Products Pty Ltd as set out in Schedule 2. SCHEDULE 2 UNDERTAKINGS GIVEN TO THE COURT BY ROADSIDE PRODUCTS PTY LTD 1. Roadside Products Pty Ltd (Roadside) by itself, its directors, officers, employees, agents or otherwise will not, until further order, dispose of, encumber or otherwise deal with, in any way, the business name "Dura-Post". 2. Roadside by itself, its directors, officers, employees, agents or otherwise will not, until further order, dispose of, encumber or otherwise deal with, in any way, any of Roadside's money, property or other assets whether in the name of Roadside or not, and whether or not held by it as trustee, and whether solely or jointly owned, up to the value of $1.2 million, other than for the following purposes: (i) to protect the intellectual property of Roadside by the commencement and prosecution of proceedings against infringement of the same; (ii) to commence and prosecute any other bona fide proceedings which Roadside may be advised to bring; (iii) to defend any other proceedings on foot or that may be brought against Roadside; (iv) to meet Roadside's taxation liabilities; (v) to comply with the statutory requirements to which Roadside is subject; (vi) to meet Roadside's accountancy and legal fees; (vii) to operate its business bona fide including without limitation to pay ordinary and proper business expenses incurred by Roadside, including but not limited to remuneration of staff; (viii) to operate an ordinary business overdraft secured against the assets of the company, solely for the purpose of the business; (ix) to enter into lease and hire purchase agreements in the ordinary course of its business solely for the purpose of its business.