Federal Court of Australia Broozac Pty Ltd v ASP Aluminium Holdings Pty Ltd [2020] FCA 1345 File number(s): QUD 833 of 2018 Judgment of: DERRINGTON J Date of judgment: 15 September 2020 Catchwords: PRACTICE AND PROCEDURE – adjournment of interlocutory application – complex proceedings – concurrent proceedings in the Supreme Court of Queensland – adjournment granted Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 8 Date of hearing: 15 September 2020 Counsel for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Tenth, Eleventh, Twelfth, Fourteenth and Sixteenth Plaintiffs: Mr G Gibson QC with Mr D Clarry Solicitor for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Tenth, Eleventh, Twelfth, Fourteenth and Sixteenth Plaintiffs: Enyo Lawyers Counsel for the Sixth Plaintiff: No appearance for the Sixth Plaintiff Counsel for the Ninth, Thirteenth, Fifteenth, Seventeenth and Eighteenth Plaintiffs: Mr S Cooper SC with Mr A Choy Solicitor for the Ninth, Thirteenth, Fifteenth, Seventeenth and Eighteenth Plaintiffs: Synkronos Legal Counsel for the First Defendant: Mr J Hastie Solicitor for the First Defendant: Thomson Geer ORDERS QUD 833 of 2018 BETWEEN: BROOZAC PTY LTD ACN 160 879 596 First Plaintiff VILLEFRANCHE INVESTMENTS PTY LTD ACN 069 387 408 AS TRUSTEE FOR THE GATES FAMILY TRUST 2 Second Plaintiff BRENDAN BROSNAN AS TRUSTEE FOR THE BROSNAN FAMILY TRUST (and others named in the Schedule) Third Plaintiff AND: ASP ALUMINIUM HOLDINGS PTY LTD ACN 002 302 310 First Defendant MICHAEL HARRY MILLARD Second Defendant MILLARD INVESTMENTS PTY LTD ACN 073 610 581 (and others named in the Schedule) Third Defendant order made by: DERRINGTON J DATE OF ORDER: 15 SEPTEMBER 2020 THE COURT ORDERS THAT: 1. The application listed for 2 October 2020 is adjourned. 2. The matter is listed for a further case management hearing at 9.30 am on 1 December 2020. 3. Costs of this case management hearing and costs thrown away by reason of the adjournment are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DERRINGTON J: Introduction 1 This matter has an unusual history. On 19 November 2020, by order of the Court, the plaintiffs gave the usual undertakings as to damages to secure the grant of an interim injunction. On 28 November 2018, the interim injunction was dissolved by further order of the Court. The matter was ultimately discontinued by consent on 7 December 2018. However, on 1 July 2020 an interlocutory application was filed by the plaintiffs, seeking orders that they be released from those undertakings. The hearing of that application was set down for 2 October 2020. The first to fifth, seventh, eighth, tenth to twelfth, fourteenth and sixteenth plaintiffs (the Broozac Parties) now seek to adjourn that hearing date. The first defendant has consented to the adjournment. The other defendants (the Millard Parties) have been excused from any further participation in these proceedings and made no submissions. The sixth, ninth, thirteenth, fifteenth and eighteenth plaintiffs (the Synkronos Parties) have opposed the adjournment. Background 2 Many of the parties to this proceeding are involved in concurrent litigation in the Supreme Court of Queensland. Broadly speaking, that dispute involves whether several of the parties entered into an agreement and whether it was breached. It is submitted by some of the respondents in the present matter that the determination of the Supreme Court proceedings will answer the question of whether any damages arose from the granting of the injunction supported by the undertakings. The Supreme Court matter is set down for a trial before Wilson J on 19 October 2020. 3 At a case management hearing before this Court on 21 July 2020, the Broozac Parties maintained that the Supreme Court proceedings were irrelevant to the disposition of the interlocutory application. Those parties, along with the first defendant, now submit there is an overlap between those proceedings and the proceedings before this Court, such that the hearing of the latter should be adjourned until the determination of the former. 4 The Synkronos Parties, who are not a party to the Supreme Court proceedings, opposed this course of action. They allege that the undertakings given to the Court in support of the injunction were given without instructions. While this matter is yet to be determined by the Court, both the first defendant and the Millard parties – the parties in whose favour the undertakings were given – do not oppose the Synkronos Parties being released on this basis. The Broozac Parties opposed a partial release of the undertakings in favour of the Synkronos Parties. Consideration 5 The decision to refuse or grant an adjournment is a discretionary one. In the present case, the concurrent litigation in the Supreme Court of Queensland is a factor which weighs overwhelmingly in favour of granting the adjournment. Those proceedings are likely to impact on the outcome of this case, or at the very least, are likely to crystallise the issues which underlie these proceedings. Indeed, if the proceedings in the Supreme Court are determined in such a way that no damages are established, the questions on the present application may be truncated. For this reason, the hearing of the interlocutory application should be adjourned until after the determination of the Supreme Court proceedings. 6 This then raises the question of whether the application should be adjourned sine die or to a particular date. My preference is for the former, and I propose to set the matter down for a case management hearing in early December for a review at that time. Costs of the adjournment 7 In relation to the question of costs, the first defendant asks for the costs thrown away by reason of the adjournment. Mr Hastie of counsel submitted that the Broozac Parties were on notice from the last case management hearing that there was likely to be overlap with the Supreme Court proceedings and they should have sought an adjournment at that time. Moreover, the first defendant argued that the costs expended in preparing for the hearing, including the filing of its affidavit material, have been wasted, because that material will need to be substantially "re-worked" following the determination of the Supreme Court proceedings. 8 While these points have some force, they will have equal force at the end of the hearing if the question of costs is reserved. Given the circumstances relevant to the question of costs are in flux, and likely to be influenced to some degree by the Supreme Court proceedings, I propose to reserve that question until the conclusion of these proceedings. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington. Associate: Dated: 15 September 2020 SCHEDULE OF PARTIES QUD 833 of 2018 Plaintiffs Fourth Plaintiff: FINBRAY PTY LTD Fifth Plaintiff: BUTTERS SUPER PTY LTD ACN 622 164 256 AS TRUSTEE FOR THE BUTTERS FAMILY SUPERANNUATION FUND Sixth Plaintiff: PETER JAMES Seventh Plaintiff: DENIS VALETIC Eighth Plaintiff: BARRY LUNN Ninth Plaintiff: RICHARD HARRISON Tenth Plaintiff: ROBERTS FRASER Eleventh Plaintiff: LARSEN SMSF PTY LTD Twelfth Plaintiff: RICHARD SHARPS Thirteenth Plaintiff: SCOTT SHERRY Fourteenth Plaintiff: KURT KAVANAGH Fifteenth Plaintiff: NICHOLAS GUTHRIE Sixteenth Plaintiff: SEAN RUSSELL Seventeenth Plaintiff: LUKE HODGMAN Eighteenth Plaintiff: DANIEL MALONEY Defendants Fourth Defendant: MICHAEL TWO PTY LTD ACN 161 584 989 Fifth Defendant: PATHOLD NO 73 PTY LTD ACN 064 860 028