Anthony Magafas & Anor v Peter Carantinos & Ors [2010] NSWSC 30

New South Wales Supreme Court

CITATION : Anthony Magafas & Anor v Peter Carantinos & Ors [2010] NSWSC 30

HEARING DATE(S) : 1 February 2010

JUDGMENT DATE : 4 February 2010

JURISDICTION : Equity Division

JUDGMENT OF : Einstein J

DECISION : Leave to file cross claim allowed subject to conditions.

CATCHWORDS : Case management - Proceedings determined at first instance - Subject to certain matters primary judgment upheld on appeal - Leave to appeal to the High Court rejected - Sundry matters debated in relation to whether or not matters occurring following the Court of Appeal judgments render certain matters reserved by the Court of Appeal otiose - Second defendant seeks leave to file a cross claim

LEGISLATION CITED : Bankruptcy Act, 1966 (Cth)

CATEGORY : Separate question

CASES CITED : Farah Constructions v Say-Dee (2007) 230 CLR 89 Nelson v Nelson (1995) 185 CLR 538

Anthony Magafas (First Plaintff) Pac-Com Pty Limited (Second Plaintiff) Peter Carantinos (First Defendant) PARTIES : Fotini Carantinos (Second Defendant) Artesian Pty Limited (Third Defendant) Athena Touriki (Fourth Defendant) Gregory Fav (Fifth Defendant)

FILE NUMBER(S) : SC 2670/06

COUNSEL : Mr T Alexis SC, Mr S Golledge (Plaintiff) Mr Kelly SC (Second Defendant)

SOLICITORS : Rockliffs Solicitors and IP Lawyers (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Einstein J

Thursday 4 February 2010

2670/06 Anthony Magafas & Anor v Peter Carantinos & Others

JUDGMENT The state of these proceedings 1 The primary judgment at first instance was delivered on 15 May 2007: [2007] NSWSC 416. 2 Following the granting of leave to reopen the court upheld the plaintiffs case against the first defendant but rejected the plaintiffs case against the second defendant: [2007] NSWSC 917. 3 The decision of the New South Wales Court of Appeal was handed down on 17 November 2008: [2008] NSWCA 304. 4 The issues which were relevant on the appeal were identified in paragraph 49 of the reasons of Hodgson JA. 5 An application for special leave to appeal to the High Court of Australia was unsuccessful: [2009] HCA Trans 89 (1 May 2009). Later matters 6 It is fair to observe that a deal of the current disputes separating the parties are concerned with a close analysis of the particular orders reserved by the Court of Appeal: there being particular present focus on matters occurring after the handing down of the Court of Appeal's decision. 7 Whenever proceedings at first instance come before the Court of Appeal and then are later remitted to the Court of first instance, the latter Court can be in an invidious position particularly where as here, the intent of the matters reserved by the Court of Appeal is in high contention. 8 Parameters of the current position may be fairly described as follows: