FEDERAL COURT OF AUSTRALIA

Dialog Pty Ltd v Addease Pty Ltd

[2003] FCA 1434

DIALOG PTY LTD ACN 010 089 175 v ADDEASE PTY LTD ACN 007 212 768, AND GEORGE MICHAEL MIHAILIDES

Q235 OF 2001

COOPER J

BRISBANE (VIA VIDEOLINK TO MELBOURNE)

2 DECEMBER 2003

THE COURT ORDERS THAT:

1.         The application be dismissed. 

2.         The applicant pay the respondents’ costs of and incidental to the application to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     An application by way of notice of motion was filed in Court this afternoon.  By this motion, the applicant seeks the suspension of paragraphs 7, 9, and 10 of a judgment which I handed down on 26 November 2003, under O 35 r 3 of the Federal Court Rules.

2                     On that occasion, at the request of the applicant to the principal proceedings, I made a special order under the Rules that those paragraphs would not take effect until 4.00 pm today, Tuesday 2 December 2003, and, on that occasion, I indicated that, absent some arrangement being made between the parties or upon an application being filed and an order obtained for staying the judgment, the judgment will take effect today.

3                     In support of the application, an affidavit of Mr Brown has been filed, which deposes to the fact that there is in existence two bank guarantees in favour of the second respondent in amounts totalling $450 000.  Those bank guarantees are exhibited to the affidavit of Mr Brown.

4                     The affidavit of Mr Brown continues that his clients are concerned that if the bank guarantees are called upon, the funds will be lost to the applicant if the applicant should succeed in relation to an appeal.  Mr Brown further deposes that none of the legal advisers engaged by the applicant at the time the judgment was delivered were, because of other commitments, in a position to do anything in relation to taking steps to seek a stay of the judgment or to consider and file a notice of appeal.

5                     Notwithstanding that such was the position, no steps were taken until today to either raise the matter with the solicitors for the respondents/cross claimants, or with the Court. 

6                     The bank guarantees only cover the judgment insofar as it relates to an entitlement of the second respondent.  It does not secure performance in any way of the judgment for a money sum owed in my judgment to the first cross-claimant as set for in par [7]. 

7                     In those circumstances, at least so far as par [7] is concerned, there is no basis upon which the judgment should be further stayed.

8                     Insofar as the money sums specified in pars [9] and [10] are concerned, I am not prepared now to further suspend the coming into effect of the order.  That does not mean that it is beyond the power of the applicant to the principal proceedings to bring an application for a stay on proper material, as I indicated when I handed down judgment on Wednesday 26 November 2003.  On that basis, I decline to further stay the orders.

I certify that the preceding eight (8)

numbered paragraphs are a true copy

of the Reasons for Judgment herein

of the Honourable Justice Cooper.

Associate:

Dated:              8 December 2003