FEDERAL COURT OF AUSTRALIA

Elster Metering Pty Ltd ACN 004 088 680 v G S Technology Pty Ltd

ACN 011 062 767, in the matter of G S Technology Pty Ltd ACN 011 062 767 FCA 858

ELSTER METERING PTY LTD ACN 004 088 680 (formerly DAVIES SHEPHARD PTY LTD), WOODPICKERS AUSTRALIA PTY LTD ACN 009 738 005 (formerly DAVIES SHEPHARD (QUEENSLAND) PTY LTD) and GSA INDUSTRIES (AUST) PTY LTD ACN 004 784 301 v G S TECHNOLOGY PTY LTD ACN 011 062 767

QUD 102 OF 2005

DOWSETT J

23 MAY 2005

BRISBANE

THE COURT ORDERS THAT:

1.         The respondent company pay the applicant’s costs of and incidental to the application, including reserved costs, but excluding costs of and incidental to the hearing on 19 May 2005

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

REASONS FOR JUDGMENT

1                     I have today dismissed an application for winding up of the respondent company upon the basis that the applicant has been paid and no longer wishes to prosecute the application.  The outstanding question is as to the costs of the application. 

2                     Counsel for the company has correctly, in my view, conceded that the applicant ought, generally, have the costs of the application.  However, he submits that the order should not include the costs of a hearing on Thursday 19 May 2005.  On that date, at the request of the applicant, the matter was listed for mention.  At that stage, the company was about to make an application in the High Court for a stay.  That application was, in fact, to be made this morning.  On 18 May, it had tendered a cheque for the amount claimed.  From the applicant’s point of view the matter was further complicated by the fact that the same legal question was likely to arise in connection with bankruptcy proceedings.  There was a suggestion that the matters should be heard together.

3                     In the circumstances, it seems to me that it was reasonable for the parties to seek to sort out the basis upon which the hearing of the application was to proceed.  By that time, the applicant must have been giving serious consideration to the question of whether or not to accept the cheque.  Opinions may differ, but, in the end, I am inclined to think that the best course is to make no order as to the costs of the hearing on Thursday last. 

4                     I will therefore order that the respondent company pay the applicant’s costs of and incidental to the application, including reserved costs, but excluding the costs of and incidental to the hearing on 19 May 2005.

Associate:

Dated:              1 July 2005