M & S Butler Investments Pty Ltd & Ors v Granny May's Franchising Pty Ltd & Ors Stewart, Jack & Anor v Granny May's Franchising Pty Ltd & Ors [1998] FCA 568

M & S Butler Investments Pty Ltd & Ors v Granny May's Franchising Pty Ltd & Ors Stewart, Jack & Anor v Granny May's Franchising Pty Ltd & Ors [1998] FCA 568

Because M & S Butler Investments Pty Ltd was in liquidation and the liquidator did not wish to continue the action or instruct solicitors, the application and Further Amended Statement of Claim in QG 136 of 1996 had to be struck out so far as they related to that company, with a short stay to allow the liquidator to apply to set the order aside. The remaining proceedings were to be remitted to the District Court of New South Wales with a recommendation for consolidation. As the hearing was necessary and the Court could not apportion fault for the procedural situation, only the costs of the motion and supporting affidavit were made the first respondent's costs in the proceedings, with the...

Jurisdiction
Australia
Judgment Date
11 May 1998
Procedural Posture
Interlocutory Motion in Federal Court Proceedings Concerning Strike Out or Stay and Remittal / Ex Tempore Reasons for Judgment and Orders
Outcome
Application and Further Amended Statement of Claim struck out only insofar as they related to M & S Butler Investments Pty Ltd; both proceedings remitted to the District Court of New South Wales; costs ordered as costs in the proceedings subject to specific costs of the motion and affidavit.
Legal Topics
['strike Out of Pleadings' 'company in Liquidation' 'authority of Solicitors to Act' 'remittal to District Court of New South Wales' 'consolidation of Proceedings' 'costs']
['civil Procedure' 'corporations and Insolvency'] ['strike Out of Pleadings' 'company in Liquidation' 'authority of Solicitors to Act' 'remittal to District Court of New South Wales' 'consolidation of Proceedings' 'costs']

Case Brief

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Procedural Posture

Interlocutory Motion in Federal Court Proceedings Concerning Strike Out or Stay and Remittal / Ex Tempore Reasons for Judgment and Orders

Legal Issues

  1. 1 ['Whether the application and Further Amended Statement of Claim in QG 136 of 1996 should be struck out or stayed insofar as they related to M & S Butler Investments Pty Ltd after it went into liquidation and the liquidator had no interest in the proceedings.' 'Whether the proceedings should be remitted to the District Court of New South Wales with a recommendation for consolidation.' 'How the costs of the motion, supporting affidavit and hearing should be dealt with.']

Ratio Decidendi

Because M & S Butler Investments Pty Ltd was in liquidation and the liquidator did not wish to continue the action or instruct solicitors, the application and Further Amended Statement of Claim in QG 136 of 1996 had to be struck out so far as they related to that company, with a short stay to allow the liquidator to apply to set the order aside. The remaining proceedings were to be remitted to the District Court of New South Wales with a recommendation for consolidation. As the hearing was necessary and the Court could not apportion fault for the procedural situation, only the costs of the motion and supporting affidavit were made the first respondent's costs in the proceedings, with the...

Court Disposition

Application and Further Amended Statement of Claim struck out only insofar as they related to M & S Butler Investments Pty Ltd; both proceedings remitted to the District Court of New South Wales; costs ordered as costs in the proceedings subject to specific costs of the motion and affidavit.

Orders

  • ['The application and Further Amended Statement of Claim in proceedings QG 136 of 1996 be struck out only insofar as it relates to M & S Butler Investments Pty Ltd as a party.' 'Order 1 be stayed until 27 May 1998 to allow the Liquidator to make application to have that order set aside.' 'The second applicant in...