Case: Young v ICM Agriculture Pty Ltd [2009] FCA 1065
Outcome: cited
25 July 2008, the Federal Magistrates Court ordered that the Bankruptcy Notice be set aside and that ICM pay Mr Young's costs: Young v ICM Agriculture Pty Ltd [2008] FMCA 1038. Following a hearing at which ICM and Mr Young were represented by counsel, I ordered on 19 February 2009 that the appeal be allowed, the orders of the Federal Magistrates Court be set aside, and in lieu thereof it be ordered that the application to that Court be dismissed. I also ordered that Mr Young pay ICM's costs of the FMC Bankruptcy Notice proceeding and that he pay ICM's costs of the FC Bankruptcy Notice Appeal: ICM Agriculture Pty Ltd v Young [2009] FCA 109 (Earlier Reasons for Judgment). I will take my Earlier Reasons for Judgment as read. First, on 17 August 2009, Mr Young and AAC launched proceeding NSD 874/2009 in this Court against ICM. The proceeding was commenced by application supported by a statement of claim. In broad terms, the claims made are in line with those made in the 2007 DC Proceeding. Although the form of application is lengthy, I find it convenient to set out the relief claimed in paras 2 14 of the application (in para 1 the Court's leave was sought for AAC to commence and carry on the proceeding otherwise than by a solicitor: see Young v ICM Agriculture Pty Ltd [2009] FCA 1065): A declaration that in or about the period from 26 May 1997 until about 30 July 2009: (a) the Department of Primary Industries (formerly known as the New South Wales Department of Agriculture) for and on behalf of the State of New South Wales (" NSW DPI ") and the Grains Research and Development Corporation (" GRDC "); (b) alternatively, the NSW DPI on behalf of itself and the GRDC, was or were the grantee (as defined in section 3(1) of the PBR Act), including on a provisional basis, of the PBR (as defined in section 3(1) of the PBR Act): (c) with respect to the chickpea (cicer arientinum) variety " Bumper " (the " Product "); (d) which Product was the subject matter of an application number 1997/097 pursuant to section 24(1) of the PBR Act to the Secretary (as defined in section 3(1) of the PBR Act) for the grant of PBR in the variety " Bumper" (the " PBR Application "); (e) which PBR Application was accepted by the Secretary, pursuant to section 39(1) of the PBR Act, on 26 May 1997 (the " PBR Acceptance "); and (f) in respect of which PBR was granted by the Secretary on 19 June 2000. A declaration that the respondent ( "ICM ") by: (a) refusing to deliver to the second applicant (" AAC ") or as it directed a crop of Bumper chickpeas comprising some 957 metric tonnes or thereabouts (the " Bumper Chickpea Crop ") from at least 11 July 2003 and thereafter; (b) offering for sale the Bumper Chickpea Crop to Agrinational Pty Ltd (" Agrinational ")' (c) selling or purporting to sell the Bumper Chickpea Crop to Agrinational in mid August 2003 and thereafter; (d) receiving at least $458,178.49 exclusive of GST (the " Sale Amoun t") for the Bumper Chickpea Crop; (e) not accounting to and providing to AAC the Sale Amount, ("t he ICM Conduct "), without or otherwise than in accordance with, authorisation from the grantee of the PBR with respect to the Product (the " Rights "), committed an infringement of the Rights pursuant to section 53(1) of the PBR Act. A declaration that NSW DPI and GRDC, alternatively, NSW DPI on its own behalf and on behalf of GRDC, have or has validly and effectively assigned to AAC the Rights, including to commence and continue an action for infringement under section 53(1) of the PBR Act. A declaration that AAC has validly and effectively assigned to the first applicant (" Young ") the Rights, including to commence and continue an action for infringement under section 53(1) of the PBR Act. A declaration that in the events which have happened Young, alternatively, AAC, is the holder of the Rights pursuant to section 53(3) of the PBR Act. An order pursuant to section 56(3) of the PBR Act that ICM pay damages or give an account of profits to Young, alternatively AAC, arising from ICM's infringement of the Rights. A declaration that by engaging in all or part of the ICM Conduct, ICM: (a) converted to its own use and benefit the Bumper Chickpea Crop; (b) is required to pay damages in the Sale Amount, alternatively, some other amount to be determined. A declaration that by engaging in all or part of the ICM Conduct, ICM: (a) breached the terms of the one page agreement titled "GROWERS LICENCE TO RECEIVE PLANTING SEED SCHEDULE TO THE CONTRACT FOR COMMERCIALLY GROWING BUMPER CHICKPEA" dated 21 June 2002 to which AAC and ICM were parties (the "Growers Licence" ); (b) is required to pay damages in the Sale Amount, alternatively some other amount to be determined; (c) is required to indemnify under the indemnity contained in clause 5 of the Growers Licence (" ICM Indemnity ") in the Sale Amount, alternatively some other amount to be determined. A declaration that by engaging in all or part of the ICM Conduct, ICM had and received the Sale Amount to AAC's own use and benefit and that ICM is required to account for or pay by way of restitution the Sale Amount, alternatively some other amount to be determined. A declaration that in the events which have happened, by one or more instruments between AAC and Young and dated: (a) 11 December 2007 and titled " Deed of Assignment of Cause of Action" ; (b) 12 June 2009 and titled " Supplementary Deed of Assignment"; (c) 3 July 2009 and titled " Further Supplementary Deed of Assignment"; (d) 15 July 2009 and titled " Deed of Assignment of Fruits of the Action "; (e) 30 July 2009 and titled " Assignment Deed ", AAC has validly and effectively assigned to Young on the terms therein, AAC's rights and causes of action or the fruits thereof, in respect of AAC's claims against ICM for: (f) breach of contract (the Growers Licence); (g) indemnity under the ICM Indemnity; (h) conversion of the Bumper Chickpea Crop; (i) money had and received or claim in restitution. An order that ICM pay Young, alternative, AAC: (a) damages for breach of the Growers Licence in the Sale Amount, alternatively, in some other amount to be determined; (b) the Sale Amount, alternative some other amount to be determined, pursuant to ICM Indemnity; (c) damages for ICM's conversion of the Bumper Chickpea Crop, in the Sale Amount, alternatively, some other amount to be determined; (d) the Sale Amount, alternatively, some other amount to be determined, as money had and received or in restitution; (e) interest. Costs. An order that there be set off or deducted from any amount which ICM may be ordered to pay Young or ACC [sic] in this proceeding (including any order for costs) the amount which Young owes or upon determination will owe to ICM in respect of: (a) the judgment made and entered on 16 October 2007 by Judicial Registrar McDonald in District Court of New South Wales proceedings number 3126 of 2004 between ICM (as plaintiff) against Young (as defendant) (" 2004 DC Proceeding ") in favour of ICM against Young and accruing interest thereon; (b) ICM's costs in respect of the 2004 DC Proceeding; (c) ICM's costs in respect of Federal Magistrates Court of Australia Sydney Registry proceedings number SYG 3929 of 2007 between Young (as applicant) and ICM (as respondent); (d) ICM's costs in respect of Federal Court of Australia New South Wales District Registry proceedings number NSD 1267 of 2008 between ICM (as appellant) and Young (as respondent), and that the net balance be the amount for which ICM shall be liable to Young or AAC or Young shall be liable to ICM. There has been no suggestion that the State of New South Wales or the GRDC is to be joined as a party, notwithstanding, for example, the relief sought in para 4 of the application. It may be intended, however, that they will somehow indicate their consent to the making of the declarations and orders sought (see [54] above). Second, on 4 September 2009 the 2007 DC Proceeding was transferred to the Supreme Court of New South Wales in proceeding number 13822/09, and on the same day the Supreme Court ordered that it be transferred to this Court where it has been numbered NSD 1026 of 2009. The result of the first and second matters noted is that this Court is now seized of the claims made by Mr Young and AAC against ICM in the 2007 DC Proceeding as well as in the proceeding that they have recently commenced in this Court.