FEDERAL COURT OF AUSTRALIA

Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 1397
Citation:	Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 1397	
		
Parties:	BOB JANE CORPORATION PTY LTD ACN 005 870 431 v ACN 149 801 141 PTY LTD, BOB JANE SOUTHERN MOTORS PTY LTD, CALDER PARK PROMOTIONS PTY LTD (IN LIQ) (ACN 138 012 021), ROBERT FREDERICK JANE, DENNIS PETER RIGON, BOB JANE GLOBAL TYRE CORPORATION (HONG KONG) LIMITED and ACN 154 904 604 PTY LTD	
		
File number:	VID 418 of 2011	
		
Judge:	BESANKO J	
		
Date of judgment:	1 December 2015	
		
Legislation:	Federal Court Rules 2011 (Cth) rr 1.32, 41.10
Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 68, 69	
		
Cases cited:	Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2013] FCA 1255
Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 1343 	
		
Dates of hearing:	27 November 2015, 1 December 2015	
		
Date of publication of reasons:	7 December 2015	
		
Place:	Adelaide	
		
Division:	GENERAL DIVISION	
		
Category:	No Catchwords	
		
Number of paragraphs:	14	
		
Counsel for the Applicant:	Mr I Waller QC with Mr A Nash	
		
Solicitor for the Applicant:	Clayton Utz	
		
Counsel for the First, Second, Third, Fifth, Sixth and Seventh Respondents	The First, Second, Third, Fifth, Sixth and Seventh Respondents did not appear	
		
Counsel for the Fourth Respondent:	Mr J Levine	
		
Solicitor for the Fourth Respondent:	Templeton Fox Rothschild	

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 418 of 2011	
 
BETWEEN:	BOB JANE CORPORATION PTY LTD ACN 005 870 431
Applicant
	
AND:	ACN 149 801 141 PTY LTD
First Respondent

BOB JANE SOUTHERN MOTORS PTY LTD
Second Respondent

CALDER PARK PROMOTIONS PTY LTD (IN LIQ) (ACN 138 012 021)
Third Respondent

ROBERT FREDERICK JANE
Fourth Respondent

DENNIS PETER RIGON
Fifth Respondent

BOB JANE GLOBAL TYRE CORPORATION (HONG KONG) LIMITED
Sixth Respondent

ACN 154 904 604 PTY LTD
Seventh Respondent

JUDGE:	BESANKO J	
DATE OF ORDER:	1 DECember 2015	
WHERE MADE:	ADELAIDE VIA VIDEO LINK TO MELBOURNE	

THE COURT ORDERS THAT:

1.	The fourth respondent pay the applicant’s costs of the application dated 26 February 2015 in a lump sum in the amount of $20,934.61.
2.	The orders sought in paragraphs 3 and 4 of the applicant’s application dated 16 November 2015 be refused.
3.	There be no order as to costs in relation to the fourth respondent’s application dated 16 November 2015.
Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 418 of 2011	
 
BETWEEN:	BOB JANE CORPORATION PTY LTD ACN 005 870 431
Applicant
	
AND:	ACN 149 801 141 PTY LTD
First Respondent

BOB JANE SOUTHERN MOTORS PTY LTD
Second Respondent

CALDER PARK PROMOTIONS PTY LTD (IN LIQ) (ACN 138 012 021)
Third Respondent

ROBERT FREDERICK JANE
Fourth Respondent

DENNIS PETER RIGON
Fifth Respondent

BOB JANE GLOBAL TYRE CORPORATION (HONG KONG) LIMITED
Sixth Respondent

ACN 154 904 604 PTY LTD
Seventh Respondent

JUDGE:	BESANKO J	
DATE:	7 DECEMBER 2015	
PLACE:	ADELAIDE	

REASONS FOR JUDGMENT
1		On 27 November 2015, I made an order that the applicant’s interlocutory application dated 23 October 2015 be transferred to another judge of the Court for hearing and determination (Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 1343).  
2		On 27 November 2015, the applicant asked me to deal with another interlocutory application it had issued dated 16 November 2015.  In that application the applicant seeks the following orders:
1.	The Fourth Respondent pay the Applicant’s costs of this application in a lump sum, in an amount to be fixed.

2.	The Fourth Respondent pay the Applicant’s costs of the application dated 26 February 2015 in a lump sum, in the amount of $20,934.61.

3.	The costs of taxation of the Applicant’s costs awarded at the original trial of this proceeding (in the amount of $232,630.00, as assessed by Registrar Scott on 16 October 2015), together with interest thereon, be added and included in the Warrant of Seizure and Sale AW150040844 issued by the Victorian Sheriff’s Office and dated 19 August 2015 (Second Warrant).

4.	The amounts set out in paragraphs 1 and 2 above, together with interest thereon, be added and included in the Second Warrant if those costs are not paid by the Fourth Respondent within 7 days of the date of the relevant order.

3		The applicant’s application is supported by two affidavits of its solicitor, Mr Richard Hoad, the first sworn on 16 November 2015 and the second sworn on 27 November 2015.  
4		On 27 November 2015, I heard submissions with respect to the order sought in paragraph 3.  I then adjourned the application to 1 December 2015 so that I could consider whether I had the power to make that order, and I indicated that I would hear further submissions as to the balance of the orders sought in the interlocutory application.  
5		On 1 December 2015, I refused to make the order sought in paragraph 3 and dealt with the other orders sought in the application.  I said that I would deliver reasons for my decision and these are my reasons.  
6		In relation to the order sought in paragraph 3, I note that r 41.10 of the Federal Court Rules 2011 (Cth) (“the Rules”) provides as follows:
41.10	Execution generally

(1)	A party who wants to enforce a judgment or order of the Court may apply to the Court to make an order, to issue any writ, or to take any other step that can be taken in the Supreme Court of the State or Territory in which the judgment or order has been made as if the judgment or order was a judgment or order of that Supreme Court.

(2)	An order made under subrule (1) authorises the Sheriff, when executing the orders of the Court, to act in the same manner as a similar officer of the Supreme Court of the State or Territory in which the order is being executed is entitled to act. 

…

7		I was referred to rr 68 and 69 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“the Victorian Supreme Court Rules”).  Rule 68 deals with warrants of execution generally and that includes the warrant in issue in this case, a warrant of seizure and sale.  Rule 69 deals specifically with warrants of seizure and sale.  
8		I was referred to r 69.03 which provides as follows:
Unless the Court otherwise orders, a warrant shall not be issued while another warrant issued in respect of the same judgment is in force except for the purpose of Rule 68.03.

9		Rule 68.03 is in the following terms:
A person entitled to enforce a judgment entered or given with costs may have execution to enforce [endorse] the judgment and, when the costs become payable, have execution separately to enforce payment of the costs.

10		The amount in the warrant of seizure and sale as it presently stands is for the amount of the taxed costs of the main proceeding (Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2013] FCA 1255), and the amount which the applicant seeks to have added to the amount in the warrant are the costs of the taxation of costs fixed as a lump sum amount.  The history is set out in Mr Hoad’s first affidavit.
11		I was referred to various rules, both of this Court and of the Victorian Supreme Court.  My conclusions, having regard to those rules and the evidence before me, are as follows:  
(1)	Certain  irregularities will not lead to the invalidity of the warrant (see the discussion in Williams NJ, Civil Procedure Victoria (LexisNexis) Vol 1 p 5920), and it may be that certain irregularities could also be cured by the exercise of this Court’s power in r 1.32 of the Rules.  This application does not raise an issue about irregularities.  It is about the power to amend the warrant to increase the amount referred to in it;
(2)	Ordinarily, there can be only one extant warrant for a judgment, but there is an exception in the case of a principal judgment and an award of costs;
(3)	There is no express power, or at least I was not referred to an express power, to amend a warrant to include an amount fixed by a later order of the Court;
(4)	The applicant did not make any submissions on the effect of a rule such as r 69.06 of the Victorian Supreme Court Rules on its contention that there is power to amend the warrant in the manner it sought;
(5)	Having regard to the history of this matter as set out in Mr Hoad’s first affidavit, if I had the power to amend the warrant I would exercise the power in the applicant’s favour.
12		However, I am not satisfied on what has been put to me that I have the power to amend the warrant in the manner sought and, accordingly, the order sought in paragraph 3 is refused.  In view of this conclusion, the order sought in paragraph 4 must also be refused.
13		With respect to the order sought in paragraph 2, I note the evidence in Mr Hoad’s first affidavit and, in particular, paragraphs 21-27 inclusive, and the annexures referred to in those paragraphs.  In view of the history of the matter, I think that it is appropriate that costs be awarded in a lump sum and I am satisfied, having regard to the order for costs and the evidence presented to me, that it is appropriate to fix the lump sum in the amount of $20,934.61.  
14		Neither party applied for the costs of the application.  In the circumstances, the only order I made on the application is that the fourth respondent pay the applicant’s costs of the application dated 26 February 2015 in a lump sum in the amount of $20,934.61.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.	

Associate:   

Dated:	7 December 2015