DeGraeve v Bondi Diggers Memorial & Sporting Club Ltd (No 2) [2005] NSWSC 1348

New South Wales Supreme Court

CITATION : DeGraeve v Bondi Diggers Memorial & Sporting Club Ltd (No 2) [2005] NSWSC 1348

HEARING DATE(S) : 12 December 2005

JUDGMENT DATE : 12 December 2005

JUDGMENT OF : Brereton J

CATCHWORDS : PROCEDURE - miscellaneous procedural matters - compromise - proposed consent orders inconsistent with judgment on separate question already determined - alternative orders made consistent with intent of parties and with prior judgment.

LEGISLATION CITED : Corporations Act 2001 (NSW), s 511

Philippe DeGraeve (plaintiff) PARTIES : Bondi Diggers Memorail & Sporting Club Limited (defendant)

FILE NUMBER(S) : SC 2412/05

E White (plaintiff) COUNSEL : C D Wood (defendant)

George Angelinas (plaintiff) SOLICITORS : Pigott Stinson Ratner Thom (defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Monday 12 December 2005

2412/05 Philippe DeGraeve v Bondi Diggers Memorial & Sporting Club Limited (in liq) (No. 2) JUDGMENT (ex tempore) 1 HIS HONOUR: In these proceedings I gave judgment on 4 November 2005 in respect of the separate determination of the cross claim. I then made an order, in accordance with paragraph 1 of the cross claim, being a direction under Corporations Act 2001 (NSW), s 511, to the effect that the liquidator would be justified in informing the St George Bank that he had no claim in respect of any of the monies in the 007 and 605 accounts and ceasing to be a signatory to those accounts. 2 It was a basis of the judgment which I then gave that the evidence established that it was entirely clear that the registered club and its liquidator had no claim to the disputed accounts and that Mr Degraeve had a right to the accounts superior to that of the registered club. The matter was adjourned to enable the parties to consider what should happen in respect of the summons, in light of the conclusions which I had reached on the cross claim. 3 The parties initially this morning proposed by consent that the summons be dismissed, but I was not inclined to accede to this course, because the dismissal of the summons on a final basis would be inconsistent with the conclusions which I had reached and the order which I made on the cross claim; and, as I apprehended, would not, in fact, give effect to the true intent of the parties, because it would arguably raise an issue estoppel against any claim by Mr Degraeve to the balances standing in the disputed accounts. 4 Mr White, for the plaintiff, now seeks declarations in terms of paragraphs 1, 2, and 5 of the summons. Ms Sherif, who appears today for the liquidator, has now announced that the liquidator does not oppose but does not consent to orders being made in these terms. The parties are agreed that if, I make such declarations, there should be no order as to costs, and the court should note that the plaintiff's costs of the summons and the cross claim have been satisfied. 5 For the reasons which I gave on 4 November 2005, I am satisfied that the plaintiff is entitled to the declarations sought in paragraphs 1, 2 and 5 of the summons. 6 I make declarations in accordance with paragraphs 1, 2 and 5 of the summons. By consent, I make no order as to costs, and I note that the plaintiff's costs of the summons, including the costs of the cross claim, have been satisfied.