Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd & [No 2] [2006] NSWCA 36 (6 March 2006)

CITATION: AZTECH SCIENCE PTY LTD v ATLANTA AEROSPACE (WOY WOY) PTY LTD & ANOR [NO. 2] [2006] NSWCA 36

FILE NUMBER(S):

40996/04

HEARING DATE(S): 9 August 2005

DECISION DATE: 06/03/2006

PARTIES:

Aztech Science Pty Ltd - Appellant

Atlanta Aerospace (Woy Woy) Pty Ltd - First Respondent

Stuart Daevys - Second Respondent

JUDGMENT OF: The Court

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): EQ 2187/03

LOWER COURT JUDICIAL OFFICER: Barrett J

COUNSEL:

Mr R. Montgomery - Appellant

No Appearance - First and Second Respondents

SOLICITORS:

McClellands - Appellant

No Appearance - First and Second Respondents

CATCHWORDS:

LEGISLATION CITED:

Corporations Act 2001, s131

DECISION:

(1) Appeal allowed with costs

(2) Judgment of Barrett J of 19 October 2004 set aside

(3) Declare that, pursuant to a contract entered into by Mr Azzi, Dr Daevys and Atlanta Aerospace (Woy Woy) Pty Ltd, on 19 December 2002, which contract was entered into for the benefit of Aztech Science Pty Ltd a company not then formed, such contract being ratified by Aztech Science Pty Ltd within the time agreed by the parties to the contract, Aztech Science Pty Ltd became bound by the contract and entitled to its benefit, pursuant to s 131(1) of the Corporations Act 2001

(4) Declare that, pursuant to the contract, Atlanta Aerospace (Woy Woy) Pty Ltd assigned to Aztech Science Pty Ltd all property in the Work and Confidential Information, as defined in the contract

(5) Costs of the proceedings in the Equity Division to date be reserved and further questions of costs reserved

(6) Remit the matter to the Equity Division for such further or other relief as may be sought by Aztech Science Pty Ltd

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40996/04

Eq 2187/03

HANDLEY JA

BRYSON JA

BASTEN JA

6 March 2006

AZTECH SCIENCE PTY LTD v ATLANTA AEROSPACE (WOY WOY) PTY LTD & ANOR [No. 2]

Judgment

1 THE COURT: On 15 September 2005 this Court, by majority, proposed that certain orders be made in relation to the proceedings in the Equity Division from which this appeal was brought. The orders were not, however, made on that occasion as they affected the Respondent, Dr Daevys, who had entered bankruptcy on 2 March 2004. The Court was of the view that the proceedings could not be continued, or fresh steps taken in those proceedings, without leave of the Federal Court.

2 On 13 December 2005, Wilcox J made the following orders in the matter of Aztec Science Pty Ltd v Stuart Daevys:

1. Pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth), leave is granted to the applicant to take fresh steps and continue with Supreme Court of New South Wales proceeding No 2187 of 2003.

2. For the purposes of order 1, leave to continue the said proceedings is deemed to have been granted on 2 March 2004.

3 It is now appropriate, in accordance with the earlier judgment of this Court to make the orders proposed at [113]. Accordingly, the Court orders:

(1) Appeal allowed with costs.

(2) Judgment of Barrett J of 19 October 2004 set aside.

(3) Declare that, pursuant to a contract entered into by Mr Azzi, Dr Daevys and Atlanta Aerospace (Woy Woy) Pty Ltd, on 19 December 2002, which contract was entered into for the benefit of Aztech Science Pty Ltd a company not then formed, such contract being ratified by Aztech Science Pty Ltd within the time agreed by the parties to the contract, Aztech Science Pty Ltd became bound by the contract and entitled to its benefit, pursuant to s 131(1) of the Corporations Act 2001.

(4) Declare that, pursuant to the contract, Atlanta Aerospace (Woy Woy) Pty Ltd assigned to Aztech Science Pty Ltd all property in the Work and Confidential Information, as defined in the contract.

(5) Costs of the proceedings in the Equity Division to date be reserved and further questions of costs reserved.

(6) Remit the matter to the Equity Division for such further or other relief as may be sought by Aztech Science Pty Ltd.

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LAST UPDATED: 08/03/2006