FEDERAL COURT OF AUSTRALIA
Cairnsmore Holdings Pty Ltd v Bearsden Holdings Pty Ltd (No. 2)
[2007] FCA2060
CAIRNSMORE HOLDINGS PTY LTD (ACN 109 826 404) AS TRUSTEE FOR THE CAIRNSMORE TRUST AND VERNON HOWLAND v BEARSDEN HOLDINGS PTY LTD (ACN 002 836 133) AND JAMES PEARSON HODGE
NSD 2183 OF 2005
JACOBSON J
20 December 2007
SYDNEY
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NO QUESTION OF PRINCIPLE |
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NEW SOUTH WALESDISTRICT REGISTRY |
NSD 2183 of 2006 |
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BETWEEN: |
CAIRNSMORE HOLDINGS PTY LTD (ACN 109 826 404) AS TRUSTEE FOR THE CAIRNSMORE TRUST First Applicant
VERNON HOWLAND Second Applicant
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AND: |
BEARSDEN HOLDINGS PTY LTD (ACN 002 836 133) First Respondent
JAMES PEARSON HODGE Second Respondent |
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JUDGE: |
Jacobson J |
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DATE OF ORDER: |
20 December 2007 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS:
1. Judgment for the first applicant against the first respondent for $727,898.03.
2. Judgment for the applicants against the first and second respondents in the sum of $351,835.00 plus interest from 16 July 2005 to date pursuant to Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW).
3. The judgment for $727,898.03 under Order 1 includes the sum of $351,835.00 plus interest referred to in Order 2, and the first and second respondents are not liable for more than $727,898.03 under both of those judgments.
4. Order 2 made on 29 October 2007 is vacated.
5. The respondents’ request for stay of execution of judgment is refused.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALESDISTRICT REGISTRY |
NSD 2183 of 2006 |
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BETWEEN: |
CAIRNSMORE HOLDINGS PTY LTD (ACN 109 826 404) AS TRUSTEE OF THE CAIRNSMORE TRUST First Applicant
VERNON HOWLAND Second Applicant
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AND: |
BEARSDEN HOLDINGS PTY LTD (ACN 002 836 133) First Respondent
JAMES PEARSON HODGE Second Respondent
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JUDGE: |
Jacobson J |
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DATE: |
20 December 2007 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
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2 The parties have been in dispute as to a number of issues arising from the judgment. Accordingly, final orders have not been made or entered. The parties filed written submissions on the outstanding questions on 13 December 2007.
3 I will deal with the matters in dispute under the following sub-headings.
Costs
4 On 29 October 2007, I ordered that the first respondent pay the first applicant’s costs on an indemnity basis under cl 28.2 of the Sale of Business Agreement (“the SBA”).
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5 In my view, this order does not bring into play the Rules of Court and assessment procedures enlivened by an order for indemnity costs made pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth).
Whether Cairnsmore’s claim for expenditure should be reduced by $194,000
6 Both parties approached this matter on the basis that these expenses would be recoverable only to the extent that they exceeded the amount of $194,000 received by Cairnsmore during the life of the SBA.
7 This is reflected in what I said in Cairnsmore Holdings Pty Ltd v Bearsden Holdings Pty Ltd [2007] FCA 1822 at [121]. Cairnsmore referred me to [122] – [125] of those reasons for judgment. Those paragraphs are to be read in light of what I said at [121] and [124]. The resolution of this issue is separate from “Issue three” which I dealt with in [100] to [108].
Stay of Execution
8 The respondents requested a stay to consider their prospects of appeal. In my view, they have had ample time to attend to this. I decline to order a stay.
Orders
9 I will make the following orders:
(i) Judgment for the first applicant against the first respondent for $727,898.03.
(ii) Judgment for the applicants against the first and second respondents in the sum of $351,835.00 plus interest from 16 July 2005 to date pursuant to Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW).
(iii) The judgment for $727,898.03 under Order 1 includes the sum of $351,835.00 plus interest referred to in Order 2, and the first and second respondents are not liable for more than $727,898.03 under both of those judgments.
(iv) Order 2 made on 29 October 2007 be vacated.
10 I have vacated Order 2 of 29 October 2007 because the amount payable for costs and expenses is reflected in Order 1 above.
11 Order 3 made on 29 October 2007 remains in force.
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I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. |
Associate:
Dated: 20 December 2007
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Counsel for the Applicant: |
J Svehla |
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Solicitor for the Applicant: |
Parry Carroll |
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Counsel for the Respondent: |
S Galitsky |
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Solicitor for the Respondent: |
Haylen McKenzie |
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Date of Judgment: |
20 December 2007 |
