New South Wales Supreme Court CITATION : Cogent Nominees Pty Ltd v Anthony [2004] NSWSC 1094 HEARING DATE(S) : 9 November 2004 JUDGMENT DATE : 9 November 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Orders made consequent on settlement. CATCHWORDS : PROCEDURE [113] - Supreme Court procedure - Practice under Supreme Court Rules - Judgments and orders - Self executing orders - Incidents of. Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 CASES CITED : FAI General Insurance Co Ltd v Southern Cross Exploration Ltd (1988) 62 ALJR 216 Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573 T A Field Pty Ltd v Frigmobile of Australia Pty Ltd [1978] 2 NSWLR 488 Cogent Nominees Pty Limited (P1) Cogent Investment Operations Pty Limited (P2) Cogent Securities Pty Limited (P3) Upul Anthony (D1) Futures Telecom Pty Limited (D2) Andrew Robert Terrence Boyd (D3) PARTIES : Victor Wilden-Constantin (D4) Advantage Telecommunications (Australia) Pty Ltd (D5) Hastings Singh (D6) Pathmasiri Nimal Kannangara (D7) La-Bourse Pty Ltd (D8) Neil Matthew Danson (D9) Dr Angelo Anthony (D10) FILE NUMBER(S) : SC 4735/02 I E Davidson (Ps) & mentioning (9D) G Thomas (2, 3 & 5Ds) COUNSEL : In person (6D) No appearance (1, 4, 8 & 10Ds) Submitting appearance (7D) Corrs Chambers Westgarth (Ps) Gibsons Lawyers (1 & 8Ds) Watsons (2, 3 & 5Ds) Cutler Hughes & Harris (4D) SOLICITORS : Feeney Lawyers (6D) Carroll & O'Dea (7D) No appearance (9D) Deacons (10D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J TUESDAY, 9 NOVEMBER 2004 4735/02 COGENT NOMINEES PTY LIMITED & 2 ORS v UPUL ANTHONY & 9 ORS JUDGMENT 1 HIS HONOUR: These proceedings have, much to the credit of the relevant parties and no doubt their legal advisers, been settled between the plaintiffs on the one hand and all the defendants bar the ninth defendant on the other. I shall return to the proceedings as between the plaintiffs and the ninth defendant in due course. 2 The settlements have been extremely complicated and the documentation laid before me to effectuate them is also complicated. There are two comments that I should record before making orders by reference to a series of short minutes and forms of order that have been laid before me. 3 The first is that the terms of some of the orders have been slightly altered by me with the consent of the relevant parties from the way in which they were presented. This means that the documents by reference to which the orders are made are in slightly different form from the proposed form of order attached to the terms of settlement. I simply put this on record to make it quite plain for the future that these slight divergences are not substantial and are not made without reference to the documents as attached to the terms of settlement. They are mostly minor changes that have been made at the instance of the Court. In any event, they do not in any sense vary the agreement between the parties. Certainly the relevant parties have agreed in Court to the making of the orders in the slightly altered form. Where alterations have been suggested and objection has been taken that they should not be made because they go outside the ambit of the parties' original agreement, or outside that agreement with any variations that all parties are prepared to see made, the proposed alterations have not been persisted with. The situation, therefore, is that I have ensured that the orders as ultimately made do have the consent of the parties. 4 The second comment is as follows. The only matter where I have had some hesitancy about making an order desired by the parties was in relation to order 10 of the document marked short minutes (1). Order 9 of those orders is a notation by the Court of an agreement between the plaintiffs and the third defendant that the plaintiffs should not enter or enforce order 2 or order 5 against the third defendant. Order 10 is a notation of an agreement between the plaintiff and the third defendant that the plaintiffs may without further notice enter and enforce orders 2 and 5 against the third defendant if certain circumstances occur. Those circumstances are set out in subparagraphs (a), (b) and (c) of order 10. I was a little troubled that this approached the making of a self-executing order. I generally decline to make self-executing orders because of their inconvenience and the burden that they impose on Court staff. However, in this case I do not think that the document really creates a self-executing situation, the activation of which cannot be gone behind in an appropriate way. If the plaintiffs seek to enter the orders against the third defendant or seek to enforce the judgment against him, then in my view it will be open to the third defendant to approach the Court for a stay of proceedings or for directions as to what ought occur. Upon that application, there can be an adjudication of whether or not the circumstances in paragraphs (a) (b) or (c) of order 10 have arisen, insofar as that is contested. This seems to provide a suitable mechanism for determining any contested question and to take the situation out of the self-executing situation: and see, in any event, the decisions of Master Allen in T A Field Pty Ltd v Frigmobile of Australia Pty Ltd [1978] 2 NSWLR 488; of Hunt J in Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126; of the Court of Appeal in Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573; and of the High Court in FAI General Insurance Co Ltd v Southern Cross Exploration Ltd (1988) 62 ALJR 216. It should be noted that I have also included, lest it be useful, a liberty to apply in each of short minutes (1) and short minutes (3). 5 So far as the proceedings against the ninth defendant are concerned, all is not yet lost. Those proceedings I am asked to stand over to Monday, 15 November 2004, to see whether the proceedings can by that time be compromised as between those parties. The intervening days of the fixture will be cancelled but the fixture from 15 November 2004 onwards will be maintained, until it is seen what occurs in relation to the claims against the ninth defendant. 6 There is also a reserved question relating to Sagacious Legal Pty Limited and a possible breach of Mareva relief. That matter is also reserved to Monday next, 15 November 2004. The question of the entitlement of Sagacious Legal Pty Limited to costs is also stood over to 15 November 2004. ********** Last Modified: 12/14/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.