FEDERAL COURT OF AUSTRALIA

Paraset Pty Ltd v Neocape Pty Ltd [2002] FCA 891

PARASET PTY LTD AND OTHERS v NEOCAPE PTY LTD AND OTHERS

V683 OF 2002

HEEREY J

12 JULY 2002

MELBOURNE

THE COURT ORDERS THAT:

1.                  The respondents’ motion by notice dated 2 July 2002 is dismissed.

2.                  The applicant has leave to discontinue this proceeding.

3.                  The respondents pay the applicants’ costs of the motion by notice dated 2 July 2002 fixed at $2000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

REASONS FOR JUDGMENT

1                     There is before the court a notice of motion by the respondents dated 2 July 2002 seeking orders to:

“(1      sever clause 5.1(b), (c) and (d) of the settlement agreement and make it voidable/void;

(2)       send it back to mediation or such other order that gives effect to our requests;

(3)       make such other order that would give effect to (1) and/or (2) as the court finds fit.”

2                     The applicants seek an order that the proceeding be discontinued with no order as to costs but they seek costs as to the respondents’ notice of motion. 

3                     In my opinion the order that the applicants seek is appropriate.  It is clear that this proceeding related to one only of the two nursing home properties and partnerships with which the parties were involved, namely the Lakes Entrance property.  The outstanding dispute concerns the property at Greensborough known as Deloraine.  It is in relation to this property that the mediator, the Honourable Kenneth Marks QC, made directions.

4                     It is of course quite sensible for parties to have a mediator attempt to resolve disputes in matters additional to those before the Court but the fact remains that this Court has jurisdiction only in relation to the matters brought before it, in this case the disputes relating to Lakes Entrance.  There are no outstanding disputes as to that and indeed the settlement agreement has been performed by the transfer of shares in the property.

5                     For those reasons I order that the applicants have leave to discontinue this proceeding.

6                     In their written submissions which have been provided to the respondents the applicants contend, correctly in my view, that there should be no costs of the proceeding but that the costs of the notice of motion, including a hearing before Registrar Efthim and the hearing today should be paid by the respondents.  I agree that should be so and that the sum of $2000 fixed is reasonable, that award to include any court fees.  So there will be an order that: the respondents pay the applicants’ costs of the notice of motion fixed at $2000.

7                     The further enforcement of the terms of settlement is simply a matter of contract as to which the parties can take such steps as they are advised.

Associate:

Dated:              18 July 2002