In the matter of Nortex Pty Limited [2012] NSWSC 1086

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Nortex Pty Limited [2012] NSWSC 1086 Hearing dates: 16 July 2012 Decision date: 16 July 2012 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Orders by consent as between Plaintiff, First Applicant, Third Applicant and Second Respondent made. Liquidator has liberty to apply in respect of costs. Catchwords: PRACTICE AND PROCEDURE - Orders - Consent orders where agreed between parties. Category: Principal judgment Parties: Peter Lawrence Lewis (Plaintiff) Peter & Nicolette Lewis (First Applicant) Kation Pty Limited (Second Applicant) (dismissed) Nortex Co Pty Limited (Third Applicant) Nortex Pty Limited (In Liquidation) (First Defendant) Brian Raymond Silvia in his capacity as liquidator of Nortex Pty Limited (In Liquidation) (First Respondent) Lamru Pty Limited (Second Respondent) Representation: Counsel: J.T. Johnson (First, Second and Third Applicants) M.W. Young SC (Second Respondent) Solicitors: Toomey Pegg (First, Second and Third Applicants) Lyons & Lyons (Second Respondent) File Number(s): 97/25260 (formerly 97/3081)

Judgment - EX TEMPORE 1These proceedings have a long history which has been outlined this morning by Mr Johnson who appears for the Applicants and by Mr Young SC who appears for the Second Respondent, Lamru Pty Limited ("Lamru"). It appears that the First Respondent, Brian Raymond Silvia, in his capacity of liquidator of Nortex (in liquidation) ("Nortex") has taken a limited role in respect of the application, and the true parties to the contest have been the Applicants, the interests associated with Mr Peter Lewis, on the one hand, and the Second Respondent, Lamru, on the other. 2The parties have provided a form of consent order which provides for dismissal of Amended Notices of Motion filed by Mr Peter Lewis, Ms Nicolette Lewis and Nortex Co Pty Limited on 7 March 2000 and for orders as to costs. 3I have been informed that Mr Silvia, the liquidator of Nortex, has not formally consented to those orders, but that is of lesser weight in circumstances that he has played a limited role in the proceedings. Where parties who are represented in the proceedings have reached consent orders between themselves, the court will ordinarily make those orders provided the orders are within its jurisdiction and raise no other reason why they should not be made. I see nothing on the face of the orders to suggest that they are in any way inappropriate and they have the obvious advantage of bringing long-running proceedings to conclusion. 4With one qualification I will therefore make the consent orders. The consent orders provided that there be no order as to the costs of the first respondent, Mr Silvia. I do not consider that I should make an order in that form, absent Mr Silvia's consent. I will, however, make no affirmative order as to the costs of Mr Silvia when no such order has been sought. If Mr Silvia were to seek costs of the proceedings, it would be necessary for him to bring a separate application in respect of that matter. 5Accordingly, I will make the following orders by consent as between the Plaintiff, Mr Peter Lewis, the First Applicant, Mr Peter and Ms Nicolette Lewis, the Third Applicant, Nortex Co Pty Limited, and the Second Respondent, Lamru Pty Limited: 1. The Amended Notices of Motion filed by Peter Lewis, Nicolette Lewis and Nortex Co Pty Limited ("the Appellants") on 7 March 2000 are dismissed. 2. Order that the Appellants are to pay the costs of Lamru Pty Limited ("Lamru") incurred with respect to the Amended Notice of Motion filed on 7 March 2000. 3. Note that order 2 above is subject to the orders made by White J in these proceedings on 5 April 2011 with respect to the costs of the Notice of Motion filed on behalf of Lamru on 24 August 2010 and the Notice of Motion filed on behalf of the Appellants on 6 December 2010 and that the said orders of White J are not discharged and have effect. 4. There be liberty to Mr Silvia in his capacity as liquidator for Nortex Pty Limited (in liquidation) to apply in respect of the question of costs.