Cyclopharm Ltd v Morcos (No 3) [2024] NSWSC 801 (27 June 2024)

Last Updated: 1 July 2024

Supreme Court New South Wales

Case Name:	Cyclopharm Ltd v Morcos (No 3)
Medium Neutral Citation:	[2024] NSWSC 801
Hearing Date(s):	27 June 2024
Date of Orders:	27 June 2024
Decision Date:	27 June 2024
Jurisdiction:	Equity - Duty List
Before:	Meek J
Decision:	Orders made for release or transfer of seized property to a secure storage site agreed between the active parties, in addition to further ancillary orders.
Catchwords:	CIVIL PROCEDURE — Interim preservation — Search orders — Subsequent ancillary arrangements — Plaintiffs obtained search orders pursuant to which certain property was seized and held by independent solicitors — Independent solicitors no longer wished to hold the property — Certain of the property, which included medical imaging equipment, may be property in respect of which fourth defendant has a claim — Plaintiffs’ proposed regime for release or transfer of property to a secure storage site agreed between actives parties presented as a sensible, balanced and fair arrangement CIVIL PROCEDURE — Parties — Fourth defendant did not file any notice of appearance since the proceedings were commenced, nor take any active part in the proceedings — In the circumstances, the proposed regime for release or transfer of the property to a secure storage site, which requires prior notice to be given to the fourth defendant, gave him an opportunity to make whatever claim he may wish to make
Category:	Procedural rulings
Parties:	Cyclopharm Ltd (First Plaintiff) Cyclomedica Australia Pty Ltd (Second Plaintiff) Nabil Morcos (First Defendant) HZM Pty Ltd (Second Defendant) Charles Francis Buttigieg (Third Defendant) Richard Frank Gotch (Fourth Defendant) Michael Jian Guo (Fifth Defendant) David Thomas Rundell (Sixth Defendant) Landauer Australasia Pty Ltd (Seventh Defendant) Landauer Radiopharmaceuticals Pty Ltd (Eighth Defendant) Björn Altmann (Ninth Defendant) Almedis Altmann GmbH (Tenth Defendant) Vent-Medis GmbH (Eleventh Defendant) Venti-Sys Oz Pty Ltd in its own capacity and atf the Venti-Sys Oz Trust (Twelfth Defendant)
Representation:	Counsel: S Keizer (Plaintiffs) Solicitors: Webb Henderson (Plaintiffs) Bartier Perry (Third and Twelfth Defendants) Gadens (Ninth, Tenth and Eleventh Defendants)
File Number(s):	2019/298748

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: Before me is an application by the plaintiffs to address the holding of property which was seized pursuant to search orders made by Pembroke J on 24 September 2019.
2. The plaintiffs have been represented this morning by Mr Keizer of counsel. Twelve defendants were initially joined in the proceedings. The third and twelfth defendants were represented by Ms Boyce, solicitor, and the ninth, tenth and eleventh defendants were represented by Ms Mylott, solicitor. I will refer to these (the third and ninth to twelfth) defendants as the “active” defendants.
3. The application before the Court relates specifically to the position of the fourth defendant. The Court is informed that the fourth defendant has not filed any notice of appearance since the proceedings were commenced, nor taken any active part in the proceedings.
4. For the sake of clarity, lest someone might think that the other defendants’ positions ought to be considered, I note briefly the positions regarding the other “non-active” defendants: the first defendant is deceased; the second and fifth defendants have filed submitting appearances; and the sixth to eighth defendants have had proceedings against them discontinued on terms.
5. Under the search orders, the property seized was held by independent solicitors. As between the parties who appear before me this morning, being the plaintiffs and the “active” defendants, an agreement has been reached to permit the independent solicitors to release from their custody the seized items on a basis as agreed between those parties.
6. Certain of the seized property is or may be property in respect of which the fourth defendant has a claim (noting that the property was seized at premises belonging to the fourth defendant).
7. Specifically, the seized property that may be the subject of the potential claim by the fourth defendant consists of two machines, being medical imaging equipment weighing approximately 130 kilograms, and associated items of parts contained in boxes.
8. The independent solicitors (perhaps understandably) no longer wish to hold the items seized.
9. The Court has been asked to make orders to facilitate that to occur whilst protecting the interests of the fourth defendant, at least to the extent of ensuring that the property is held and secure whilst notice is given to the fourth defendant so that he has an opportunity to make whatever claim that he may wish to make.
10. The regime proposed on behalf of the plaintiffs involves transfer of the property to a secure storage facility and, in the first instance, the plaintiffs paying the costs of the secure storage until the ultimate liability for that can be determined. That regime presents as a sensible, balanced and fair arrangement to deal with the exigency of the circumstances.
11. The Court makes the following orders:

(1) Orders that the independent solicitors appointed by the Court to supervise the execution of the search orders made by Pembroke J on 24 September 2019 are permitted to transfer or release from their custody any things seized during the execution of the search orders at the premises of the fourth defendant to a secure storage site:

(a) agreed by the plaintiffs and the active defendants (being the third and ninth to twelfth defendants); and

(b) not opposed by the fourth defendant (who has not filed an appearance).

(2) Orders that the plaintiffs are to provide at least 7 days’ written notice to the fourth defendant of any proposed transfer or release of any things agreed by the active parties in accordance with order 1.

(3) Orders, until further order, any things transferred or released in accordance with order 1 are to be retained in secure storage and not accessed by any party without the consent of each active party.

(4) Orders that the plaintiffs pay the costs of the secure storage in the first instance, with such costs to be treated as costs of and incidental to the search orders, the ultimate liability for which are reserved.

(5) Grants the independent solicitors liberty to apply to seek further orders in respect of the storage of the things referred to in order 1 in the event agreement is not reached in accordance with that order.

(6) Notes that separate orders have been made by the Registrar to deal with other aspects of the proceedings.

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