FEDERAL COURT OF AUSTRALIA MCT Dairies Inc v Probiotec Limited (No 2)[2011] FCA 218 Citation: MCT Dairies Inc v Probiotec Limited (No 2) [2011] FCA 218 Parties: MCT DAIRIES INC v PROBIOTEC LIMITED (ACN 075 170 151) File number: NSD 2105 of 2007 Judge: RARES J Date of judgment: 4 March 2011 Date of hearing: 4 March 2011 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 6 Solicitor for the Applicant: D Farrar, Farrar Lawyers Solicitor for the Respondent: D Crompton, Church and Grace IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2105 of 2007 BETWEEN: MCT DAIRIES INC Applicant AND: PROBIOTEC LIMITED (ACN 075 170 151) Respondent JUDGE: RARES J DATE OF ORDER: 4 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The funds paid into Court, together with any interest thereon, by or on behalf of the applicant/cross-respondent pursuant to order 2 made on 18 March 2008 and the further amount paid into the Court's litigants fund on 9 April 2010 be paid out to the respondent/cross-claimant. 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 2105 of 2007 BETWEEN: MCT DAIRIES INC Applicant AND: PROBIOTEC LIMITED (ACN 075 170 151) Respondent JUDGE: RARES J DATE: 4 MARCH 2011 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 I made final orders in these proceedings on 26 November 2009 dismissing the application and giving judgment for the cross-claimant, Probiotec Ltd, on its cross-claim against the applicant/cross-respondent, MCT Dairies Inc, in the sum $56,367.57. I ordered MCT Dairies to pay Probiotec's costs of the proceedings, including of the statement of claim and the cross-claim, as agreed or taxed. 2 On 20 March 2008, $40,000 was paid into Court as security for costs on behalf of MCT Dairies. On 9 April 2010 MCT paid a further sum of $1,250 into the Court's Litigation Fund as a partial security for costs. A taxation of costs occurred before a registrar who certified on 14 February 2011 that Probiotec's costs were deemed to be $158,283.49. 3 On 14 February 2011, Probiotec's solicitors wrote to the solicitors for MCT Dairies enclosing the sealed certificate of taxation, and sought consent for the payment out of the moneys that had been paid as security. No response was received. Probiotec filed a notice of motion on 21 February 2011, returnable for directions on 25 February 2011, seeking orders for payment to it of the funds held in Court as security. An affidavit of service on the solicitors for MCT Dairies was sworn by the solicitor for Probiotec, David Crompton, on 21 February 2011. When the matter came before me on 25 February 2011 there was no appearance for MCT Dairies. I directed that the proceedings stand over to today for hearing, and that MCT Dairies file and serve on or before 2 March 2011 any affidavits and submissions in opposition to the orders sought on the notice of motion. 4 No material was filed by MCT Dairies, but on 2 March 2011 its solicitor, David Farrar, filed a notice of withdrawal as a lawyer. Attached to that document was an affidavit Mr Farrar had sworn as long ago as 8 April 2010, attaching a notice of withdrawal of solicitor that he had sent to MCT Dairies on 18 February 2010. I directed that Mr Farrar attend Court today to explain what the position was with respect to the provision of documents served on him and his firm, as he was the solicitor on the record for MCT Dairies in the period between 18 February 2010 and today. 5 Mr Farrar has appeared today and assured me that he continued to receive instructions from his client until he withdrew on 2 March 2011. He also assured me that he had provided MCT Dairies with copies of documents that had been served on him for the purposes of the proceedings, including the notice of motion with which I am now dealing. He informed me that the instructions he had received in respect of the notice of motion were to neither oppose nor consent to it, and that he did not see that as an appropriate course of action. I agree. He said that caused him to withdraw from further participation. 6 In those circumstances I am satisfied that MCT Dairies continued to be properly served at its address for service, care of Mr Farrar's firm, for all relevant purposes, including the hearing of today's motion. Accordingly, I will make the orders sought in Probiotec's motion. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 14 March 2011