L & M Pastoral Company Pty Limited (formerly known as Sydney Environmental and Soil Laboratory Pty Limited) & Anor v Applied Soil Technology Pty Limited (subject to Deed of Company Arrangement) & Ors [2006] NSWSC 207

New South Wales Supreme Court

CITATION : L & M Pastoral Company Pty Limited (formerly known as Sydney Environmental and Soil Laboratory Pty Limited) & Anor v Applied Soil Technology Pty Limited (subject to Deed of Company Arrangement) & Ors [2006] NSWSC 207

HEARING DATE(S) : 17/3/06

JUDGMENT DATE : 17 March 2006

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

EX TEMPORE JUDGMENT DATE : 03/17/2006

DECISION : Notice of Motion dismissed. Costs reserved.

CATCHWORDS : Practice and Procedure - Summary dismissal - Separate question regime

LEGISLATION CITED : Industrial Relations Act (1996) Industrial Relations Amendment (Unfair Contracts) Act 2002

L & M Pastoral Company Pty Limited (formerly known as Sydney Environmental and Soil Laboratory Pty Limited) (First Plaintiff) Simon Walpole Leake (Second Plaintiff) PARTIES : Applied Soil Technology Pty Limited (subject to Deed of Company Arrangement) (First Defendant) Shannongrove Pty Limited ACN 069 873 749 (Second Defendant) Neville Pierse Gilmartin (Third Defendant) Susan Christine Gilmartin (Fourth Defendant)

FILE NUMBER(S) : SC 50076/04

COUNSEL : Mr Kimber SC (Plaintiffs) Mr M Ashhurst (Second, Third and Fourth Defendants)

SOLICITORS : Kells the Lawyers (Plaintiffs) Clayton Utz (Second, Third and Fourth Defendants)

LOWER COURT DATE OF DECISION : 03/17/2006

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Friday 17 March 2006 ex tempore Revised 29 March 2006 50076/04 L & M Pastoral Company Pty Limited (formerly known as Sydney Environmental and Soil Laboratory Pty Limited) & Anor v Applied Soil Technology Pty Limited (subject to Deed of Company Arrangement) & Ors JUDGMENT The notice of motion 1 There is before the court a notice of motion filed by the first to third defendants ["the defendants"] seeking an order that the proceedings be dismissed. The proceedings 2 The proceedings were commenced in the Industrial Relations Commission of New South Wales on 10 June 2003 and were transferred to this Court pursuant to orders made on 28 May 2004. The present "Further Re-Amended Summons" relied upon by the plaintiffs was filed on 15 February 2006. 3 It is unnecessary to repeat the record. For present purposes it suffices to observe that the proceedings constitute a claim for relief under section 106 of the Industrial Relations Act (1996) (the "Act"). 4 There is a degree of difficulty in following with precision the complex of agreements, and/or arrangements pleaded in the summons. For present purposes the following overview is sufficient: