Smartec Capital Pty Limited v Centro Properties Limited [2011] FCA 716

Smartec Capital Pty Limited v Centro Properties Limited [2011] FCA 716

Expedition was refused and the proceeding was summarily dismissed because the relief sought would postpone, restrain or affect completion of the Stock Purchase Agreement and therefore had the potential to adversely affect parties to that agreement, including sellers and the purchaser, who were not joined. Those necessary parties could not be joined in time for determination before 30 June 2011, and after the issue was raised Smartec gave no indication that it intended to join them. In those circumstances Centro discharged its onus under s 31A(2) and established that the proceeding, as constituted, had no reasonable prospects of success.

Jurisdiction
Australia
Judgment Date
21 June 2011
Procedural Posture
Proceeding Seeking Declarations, Directions and Injunctions in Relation to Alleged Contravention of ASX Listing Rule 11.2, Brought Pursuant to S 793 C and S 1101 B of the Corporations Act 2001 (cth) and the General Law / Interlocutory Application for Expedition and Defendants' Notices of Motion, Including Summary Dismissal Under S 31 A(2) of the Federal Court of Australia Act 1976 (cth)
Outcome
Proceeding dismissed; plaintiff ordered to pay defendants' costs, with costs incurred after 5 pm on 17 June 2011 on an indemnity basis.
Legal Topics
['expedition' 'summary Dismissal' 'asx Listing Rule 11.2' 'joinder of Necessary Parties' 'service Outside Jurisdiction' 'indemnity Costs']
['practice and Procedure' 'corporations Law'] ['expedition' 'summary Dismissal' 'asx Listing Rule 11.2' 'joinder of Necessary Parties' 'service Outside Jurisdiction' 'indemnity Costs']

Case Brief

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Procedural Posture

Proceeding Seeking Declarations, Directions and Injunctions in Relation to Alleged Contravention of ASX Listing Rule 11.2, Brought Pursuant to S 793 C and S 1101 B of the Corporations Act 2001 (cth) and the General Law / Interlocutory Application for Expedition and Defendants' Notices of Motion, Including Summary Dismissal Under S 31 A(2) of the Federal Court of Australia Act 1976 (cth)

Legal Issues

  1. 1 ['Whether the proceeding should be expedited so that it could be heard and decided before completion of the US Assets Sale no later than 30 June 2011' 'Whether Smartec had demonstrated a prima facie case for relief requiring compliance with ASX Listing Rule 11.2' 'Whether the proceeding was properly constituted where parties to the Stock Purchase Agreement, including sellers and the purchaser, had not been joined' 'Whether the non-joinder of materially interested parties meant the proceeding had no reasonable prospects of success under s 31A(2) of the Federal Court of Australia Act 1976 (Cth)' 'Whether the defendants should have indemnity costs after 5 pm on 17 June 2011']

Ratio Decidendi

Expedition was refused and the proceeding was summarily dismissed because the relief sought would postpone, restrain or affect completion of the Stock Purchase Agreement and therefore had the potential to adversely affect parties to that agreement, including sellers and the purchaser, who were not joined. Those necessary parties could not be joined in time for determination before 30 June 2011, and after the issue was raised Smartec gave no indication that it intended to join them. In those circumstances Centro discharged its onus under s 31A(2) and established that the proceeding, as constituted, had no reasonable prospects of success.

Court Disposition

Proceeding dismissed; plaintiff ordered to pay defendants' costs, with costs incurred after 5 pm on 17 June 2011 on an indemnity basis.

Orders

  • ['Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) the proceeding be dismissed.' "The plaintiff pay the defendants' costs." "The defendants' costs incurred after 5 pm on 17 June 2011 be paid on an indemnity basis."]