FEDERAL COURT OF AUSTRALIA Donati v McEwan Ferguson Pty Ltd [2011] FCA 1276 Citation: Donati v McEwan Ferguson Pty Ltd [2011] FCA 1276 Parties: UMBERTO BRUNO VITTORIO DONATI & CARLA DONATI AS TRUSTEES OF THE U & C DONATI SUPERANNUATION FUND v MCEWAN FERGUSON PTY LTD (ACN 082 385 920) File number: SAD 193 of 2011 Judge: BESANKO J Date of judgment: 7 November 2011 Dates of hearing: 3, 7 November 2011 Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 2 Counsel for the Plaintiff: Ms R Wong Solicitor for the Plaintiff: Ouwens Lawyers Counsel for the Defendant: Ms A Repasky Solicitor for the Defendant: Town & Country Lawyers The Liquidator: The Liquidator appeared in person on 3 November 2011 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 193 of 2011 BETWEEN: UMBERTO BRUNO VITTORIO DONATI & CARLA DONATI AS TRUSTEES OF THE U & C DONATI SUPERANNUATION FUND Plaintiff AND: MCEWAN FERGUSON PTY LTD (ACN 082 385 920) Defendant JUDGE: BESANKO J DATE OF ORDER: 7 NOVEMBER 2011 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The orders made by the registrar on 2 November 2011 be set aside. 2. The defendant and Michael Shane Ferguson are jointly and severally liable to pay the costs of the plaintiffs and of the liquidator of the interlocutory application dated 2 November 2011. 3. The plaintiff's application be referred to the registrar for hearing on a date to be fixed after 16 November 2011. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 193 of 2011 BETWEEN: UMBERTO BRUNO VITTORIO DONATI & CARLA DONATI AS TRUSTEES OF THE U & C DONATI SUPERANNUATION FUND Plaintiff AND: MCEWAN FERGUSON PTY LTD (ACN 082 385 920) Defendant JUDGE: BESANKO J DATE: 7 NOVEMBER 2011 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 I am satisfied that it is appropriate to set aside the orders made by the registrar on 2 November 2011. The non-attendance of the defendant on that day was due entirely to the fault of the defendant's solicitors. The solicitor put the wrong date in her diary. There are grounds to think that the defendant would not be wound up or not be wound up at this stage. Those grounds are set out in the affidavits. Having said that, the matter will go back to the registrar and it will be up to her to determine the issue on the evidence then before her. 2 I propose to make an order that the plaintiff's application be referred to the registrar for hearing on a date to be fixed after 16 November 2011. As I put to the parties in the course of submissions, the circumstances at the time of the next hearing may be such that, in fact, the registrar is persuaded to make similar orders to the orders that she made on 2 November 2011. 3 My orders are as follows: (1) The orders made by the registrar on 2 November 2011 be set aside. (2) The defendant and Michael Shane Ferguson are jointly and severally liable to pay the costs of the plaintiffs and of the liquidator of the interlocutory application dated 2 November 2011. (3) The plaintiff's application be referred to the registrar for hearing on a date to be fixed after 16 November 2011. 4 Those are my orders. Two things should be made clear. First, these orders do not give the Court's imprimatur or approval to any particular transaction by the defendant company. Secondly, they do not involve any judgment on the merits of any claim by the defendant or the director of the defendant that the costs occasioned by this application should, in fact, be paid by the defendant's solicitors. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 9 November 2011