FEDERAL COURT OF AUSTRALIA
Salyer v Sheahan and Lock, in the matter of SK Foods Australia Pty Ltd (in liquidation) [2012] FCA 734
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The proceeding be dismissed.
2. The plaintiffs, jointly and severally, pay the first defendants’ costs of the proceeding, with such costs to be assessed on an indemnity basis.
3. The plaintiffs, jointly and severally, pay the second defendant’s costs of the proceeding, with such costs to be assessed on an indemnity basis, and to include all reserved costs, the second defendant’s costs of and relating to the interlocutory process filed by the second defendant on 21 March 2012 seeking security for costs, and the second defendant’s interlocutory process filed on 9 May 2012.
4. The interlocutory process filed on 9 May 2012 be otherwise dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 2280 of 2011 |
BETWEEN: | SCOTT SALYER AS TRUSTEE FOR SSC&L 2007 TRUST First Plaintiff FAST FALCON LLC Second Plaintiff |
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AND: | JOHN SHEAHAN AND IAN RUSSELL LOCK AS LIQUIDATORS OF SK FOODS AUSTRALIA PTY LTD (IN LIQUIDATION) ACN 099 245 735 First Defendants BRADLEY D SHARP AS TRUSTEE IN BANKRUPTCY OF SK FOODS LP, A CALIFORNIA LIMITED PARTNERSHIP (UNDER CHAPTER 11) Second Defendant |
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JUDGE: | EMMETT J |
DATE: | 4 JUNE 2012 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 On 15 December 2011, this proceeding was commenced by originating application. The first plaintiff is Scott Salyer, as trustee for SSC&L 2007 Trust. The second plaintiff is Fast Falcon LLC. The first defendants (the Liquidators) are the liquidators of SK Foods Australia Pty Limited. The second defendant is Bradley Sharp, as trustee in bankruptcy of SK Foods LP, a California limited partnership.
2 By the originating application, the plaintiffs sought orders that a decision of the Liquidators, relating to a proof of debt filed by Mr Sharp, be set aside, and that that proof of debt be wholly rejected. They also sought orders that the decision of the Liquidators relating to a proof of debt filed by Fast Falcon LLC, in the amount of $18,452,631, be set aside, and that that proof of debt be accepted. Other alternative orders were sought, as well as interlocutory relief.
3 On 4 April 2012, orders were given for the management and further advancement of the proceeding, including orders for the filing of documents intended to crystallise the contentions of the parties and the issues between them. On 30 April 2012, further directions were made, varying the directions made on 4 April 2012. None of those directions has been complied with. On 30 April 2012, the proceeding was fixed for hearing before me on 30 May and 4 June 2012. In the meantime, on 7 May 2012, the solicitors on the record for the plaintiffs filed notices of ceasing to act.
4 On 9 May 2012, Mr Sharp filed an interlocutory application seeking orders that the proceeding be dismissed, and that the plaintiffs pay the defendants’ costs on an indemnity basis. Notice of that interlocutory application was served directly on the plaintiffs, who are resident in the United States of America. The hearing listed on 30 May 2012 was vacated by the Court, on the basis that it would be conducted on the second day that had previously been fixed, namely today, 4 June 2012.
5 When the matter was called on for hearing today, there was, unsurprisingly, no appearance for the plaintiffs. In the circumstances, I consider that it is appropriate to accede to the application made in the interlocutory application of 9 May 2012, and I propose to make orders accordingly.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. |
Associate:
