FEDERAL COURT OF AUSTRALIA

Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Limited [2013] FCA 1395

THE COURT:

1.    ORDERS that subparagraph (iii)(A) of Order 4 made by Foster J on 7 August 2013 be amended by deleting from that subparagraph the words “… within four (4) months of the date of this order …” and inserting in lieu thereof the following words, namely “… by 31 March 2014 or by such later date as the Court may fix” so that the said subparagraph now reads:

    (A)    sell the shares referred to above, or a sufficient number of them, as may be required to discharge the judgment amounts and post-judgment interest on market (if applicable), by private sale or auction, by 31 March 2014 or by such later date as the Court may fix;

2.    GRANTS leave to the applicant to amend its Interlocutory Application filed on 2 December 2013 in accordance with the draft Amended Interlocutory Application served upon the respondents on 12 December 2013, a copy of which has been initialled by Foster J and placed in the Court file.

3.    ORDERS that the applicant’s said Amended Interlocutory Application be filed and served by 5.00pm on 13 December 2013.

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4.    GRANTS leave to the applicant to file in Court its Written Submission dated 13 December 2013 directed to its application for a lump sum costs order and other matters.

5.    DIRECTS that by, 19 December 2013, the applicant file and serve any additional Written Submissions upon which it intends to rely in support of its claim for relief described in Order 6(c) below.

6.    DIRECTS that, by 31 January 2014, the respondents file and serve all affidavits upon which they intend to rely in meeting the three claims for relief made by the applicant described in subparagraphs (a), (b) and (c) below and that, by the same date (31 January 2014), the respondents file and serve Written Submissions containing such submissions as they may be advised to make in order to address the applicant’s Written Submissions made in support of those claims, being:

(a)    the applicant’s claim for a lump sum costs order;

(b)    the applicant’s claim to have subparagraphs (iii)(A) and (B) of Order 4 made by Foster J on 7 August 2013 further varied in order to provide that the sale of the shares referred to therein and the proceeds thereof also be used to satisfy costs orders made in favour of the applicant in this proceeding and in proceeding NSD 1673 of 2013; and

(c)    the applicant’s claim to be released from part of the undertaking first given by it to the Court on 14 March 2013 and renewed thereafter, which is set out in par (7) of Schedule A to the Freezing Orders made by the Court on that day, namely, that part of its undertaking which prevents it from seeking to obtain in any country outside Australia, Freezing Orders or orders of a similar kind or orders conferring security or a charge over the respondents’ assets.

7.    DIRECTS that, by 14 February 2014, the applicant file and serve any evidence-in-reply and any Written Submissions in Reply to the evidence and submissions filed and served by the respondents pursuant to Order 6 above.

8.    GRANTS to the respondents liberty to apply to have Order 1 above discharged or varied on three (3) days’ notice or on such shorter notice as a Judge might allow.

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9.    GRANTS liberty to apply to all parties in relation to the subject matter of Orders 6 and 7 above on three (3) days’ notice or on such shorter notice as a Judge might allow.

10.    ORDERS that, after 14 February 2014, the applicant’s claims described in Order 6(a), 6(b) and 6(c) above (being the remaining claims for relief made by the applicant in its Amended Interlocutory Application) be determined on the papers.

11.    ORDERS that the costs of and incidental to the listing before the Court this day (13 December 2013) be reserved.

12.    ORDERS that the solicitor for the applicant send a copy of these Orders and the Ex Tempore Reasons for Judgment delivered this day (13 December 2013) to the solicitors for the receivers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from Transcript)

1    This matter was relisted this morning at the request of the applicant in order to deal with an Interlocutory Application filed by the applicant on 2 December 2013. Yesterday, the applicant gave notice of its intention to amend its Interlocutory Application.

2    By its Amended Interlocutory Application, the applicant makes four claims for relief: First, it seeks a lump sum costs order in respect of costs previously ordered in its favour by me in this proceeding and by the Full Court on appeal. Second, it seeks an order that the shares referred to in paragraph 4 of the Orders made by me on 7 August 2013 (the shares) which are now controlled by the receivers and the proceeds of sale thereof, may be used to discharge not only the existing judgments and interest thereon but also the costs which the respondents have been ordered to pay to the applicant. Third, it seeks a variation of one of the undertakings given by it when Freezing Orders were originally made so as to permit it to apply for Freezing Orders and like relief in places outside Australia. Fourth, it seeks an order extending the time within which the receivers are authorised to sell the shares. The applicant seeks an extension of that period to the end of March 2014.

3    The respondents are represented this morning by their solicitor.

4    The solicitor for the respondents has applied for an adjournment of the hearing of the applicant’s Interlocutory Application. He also submitted that the Court should not consider today the new matters raised by the applicant in its proposed Amended Interlocutory Application. The duration of the adjournment sought by the respondents is seven (7) days.

5    The basis for the adjournment requested by the respondents is that the respondents’ solicitor has been unable to obtain instructions or to take advice from Counsel in the time available between the date on which the Interlocutory Application and supporting material was served and today. He makes the valid point that the Interlocutory Application and other material did not come to his attention in early December 2013, as the solicitor for the applicant had believed. Apparently, an attempt to serve that Application and supporting material was made by way of email sent in early December but that email and the attachments thereto did not reach the solicitor for the respondents at that time because of the bulk of the material. It appears that the solicitor for the respondents has only had the Interlocutory Application and supporting material since Wednesday of this week. In addition, he was not served with the Amended Interlocutory Application until yesterday (12 December 2013).

6    There has been some argument about what should happen with the order granting a power of sale to the receivers. Counsel for the applicant has tendered a letter from Russells, the solicitors for the receivers, in which those solicitors provide a synopsis of events to date in the receivership. That letter will become Exhibit A on this application. I do not need to traverse the contents of the letter in any detail. The important part of the letter is at the foot of page 1, where the solicitor for the receivers says:

The receivers are presently of the view that a sale of each parcel can be achieved, and there remains utility in their appointment. Further time will, however, be required.

7    Mr Cummins, who is one of the receivers, is present in Court today.

8    I have appreciated at all relevant times that selling the shares was not going to be an easy task. On 7 August 2013, I thought that the four-month period that I originally allowed for the sale to be effectuated was a reasonable time. But that time period was never set in stone and was always subject to review.

9    As I have already mentioned, the solicitor for the respondents requests an adjournment of seven days. He seeks that adjournment in order to obtain instructions and to take advice. I might have been inclined to accede to that request had he not made clear during the course of his address in Court this morning that, in his opinion, the fact that the time during which the power of sale granted to the receivers was in place has now expired, means that the receivership itself has come to an end. I have to say that I do not agree with that interpretation of the Orders which I made on 7 August 2013. However, I would not wish to leave the receivers, as officers of the court or, indeed, the applicant, in the position where there is any ambiguity or uncertainty about whether the receivers’ appointment is ongoing.

10    It seems to me that I can do justice between the parties by approaching the matter in the following way.

11    What I propose to do is immediately to vary the order which I made on 7 August 2013 at paragraph 4(iii)(A) by extending the time within which the power of sale is to be exercised to 31 March 2014. I will grant a specific liberty to the respondents to apply on three (3) days’ notice, or on such shorter notice as they might be advised, to make such application as they consider appropriate in respect of the extension which I have just ordered. I am taking that course in order to ensure that the respondents’ position is protected but also to ensure that the position of the applicant and the receivers is protected.

12    I wish to make clear that, if the respondents make an application in respect of the extension which I have just granted, that application will be considered on its merits, upon the basis that no advantage inures to the applicant merely as a result of the fact that I have today granted an extension of time within which the power of sale over the shares is to be exercised. This should ameliorate any concerns which the respondents might have. Accordingly, for those reasons, I will grant the extension which I have indicated on the terms that I have announced.

13    When revising these Reasons for Judgment, it occurred to me that I should build into Order 4(iii)(A) of the Orders which I made on 7 August 2013 and varied today an express statement to the effect that one or more further extensions of the time within which the shares are to be sold may be granted in the future, depending upon all of the circumstances in play when such extensions fall to be considered. Accordingly, the orders as made will include such a statement.

14    I have also revised the remaining orders which I made last Friday in order to better and more succinctly express the obligations of the parties thereunder. The substance of those remaining orders remains the same.

Associate:

Dated:    17 December 2013