Aquila Resources Ltd v Pasminco Ltd

Link copied
Case Copied 26 min read

FEDERAL COURT OF AUSTRALIA

Aquila Resources Limited v Pasminco Limited [2004] FCA 39

PROCEDURE – transfer to another registry – proceedings concerning deeds of administration with docket judge in Victoria – claims that companies subject to the deeds of company arrangement were not insolvent at the time those deeds were entered into and further claim for damages in an action for misleading or deceptive conduct and breach of contract filed in Western Australia – preliminary interlocutory management and orders at Western Australia District Registry – whether proceedings should be transferred to Victoria District Registry – significance of interrelationship between proceedings – balance of convenience

Federal Court of Australia Act 1976 (Cth) s 48
Trade Practices Act 1975 (Cth) s 52

AMC Investments Ltd v Willey (unreported, von Doussa J, 23 November 1989) considered
Aquila Resources Ltd v Spark [2003] FCA 394 cited
BWK Elders (Australia) Pty Ltd v Westgate Wool Co Pty Ltd (No 6) [2002] FCA 807 cited
Cultivaust Pty Ltd v Grain Pool of WA [2000] FCA 974 cited
KC Park Safe (SA) Pty Ltd v Adelaide Terrace Investments Pty Ltd (unreported, Finkelstein J, 15 May 1998) followed
National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 applied
WG & B Manufacturing Pty Ltd v Telsa Farad Pty Ltd [1999] FCA 859 cited
Wyllie Group Pty Ltd v ANZ Securities Ltd [2000] FCA 1382 cited

AQUILA RESOURCES LIMITED and AQUILA EHM PTY LTD v JOHN M SPARK, PETER D McCLUSKEY, SAVAGE RESOURCES LIMITED and SAVAGE EHM FINANCE PTY LTD
W3007 of 2003

AQUILA RESOURCES LIMITED and AQUILA EHM PTY LTD v PASMINCO LIMITED and SAVAGE RESOURCES LIMITED and SAVAGE EHM FINANCE PTY LTD
W136 of 2003

RD NICHOLSON J
30 JANUARY 2004
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W3007 OF 2003

BETWEEN:

AQUILA RESOURCES LIMITED
(ACN 092 002 769)
FIRST APPLICANT

AQUILA EHM PTY LTD
(ACN 095 529 445)
SECOND APPLICANT

AND:

JOHN M SPARK
FIRST RESPONDENT

PETER D McCLUSKEY
SECOND RESPONDENT

SAVAGE RESOURCES LIMITED
(SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 009 551 624)
THIRD RESPONDENT

SAVAGE EHM FINANCE PTY LTD
(SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 071 375 221)
FOURTH RESPONDENT

AND IN THE MATTER OF:

W136 OF 2003

BETWEEN:

AQUILA RESOURCES LIMITED
(ACN 092 002 769)
FIRST APPLICANT

AQUILA EHM PTY LTD
(ACN 095 529 445)
SECOND APPLICANT

AND:

PASMINCO LIMITED
(ACN 004 368 674)
(SUBJECT TO DEED OF COMPANY ARRANGEMENT)
FIRST RESPONDENT

SAVAGE RESOURCES LIMITED
(ACN 009 551 624)
SECOND RESPONDENT

SAVAGE EHM FINANCE PTY LTD
(ACN 071 375 221)
THIRD RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

30 JANUARY 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        In relation to proceeding W3007 of 2003:

(a)the respondents’ notice of motion dated 7 October 2003 be granted.

(b)pursuant to s 48 of the Federal Court of Australia Act1976 (Cth), the proceeding be transferred to the Victoria District Registry.

(c)the respective parties’ costs of the motion be part of their costs of the…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Aquila Resources Ltd v Pasminco Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2004] FCA 39
Decision Date

CaseChat Overview and Summary

The case of Aquila Resources Ltd v Pasminco Ltd involved a dispute between the parties over the appropriate venue for the continuation of two proceedings, W136 of 2003 and W3007 of 2003. The respondents sought to transfer the proceedings from the Western Australia District Registry to the Victoria District Registry of the Federal Court of Australia. The applicants, Aquila Resources Ltd and Pasminco Ltd, contested the transfer on various grounds, including the potential adverse impact on their ability to conduct the litigation effectively due to their Perth-based location and the choice of their solicitors.

The court was required to decide whether the transfer of the proceedings to the Victoria District Registry was in the interests of justice. The legal issues included the consideration of factors such as the convenience and expense of the parties, the location of witnesses, and the potential advantages of managing all interrelated litigation from one registry. The court also had to weigh the effect of the choice of law clauses in the proceedings against the other circumstances.

The court determined that the proceedings had a strong Victorian character, particularly when considering the interests of all potential witnesses. It was concluded that the ends of justice would best be achieved by having the matters heard in Melbourne, and that the lesser inconvenience and expense would occur if the matters were managed from the Victoria District Registry. The court considered that the disadvantages of transferring the proceedings were capable of being substantially minimised by the availability of video-conference facilities in Perth. The court also observed that there were advantages in having all interrelated litigation managed from one registry. Consequently, the court decided that the notices of motion should be granted, and the proceedings were transferred to the Victoria District Registry.

The court ordered that the respondents' notices of motion be granted in relation to both proceedings, W3007 of 2003 and W136 of 2003. The proceedings were transferred to the Victoria District Registry under section 48 of the Federal Court of Australia Act 1976 (Cth). The respective parties' costs of the motions were to be part of their costs of the proceedings.

Orders

Orders of the court

1. In relation to proceeding W3007 of 2003:

(a) the respondents’ notice of motion dated 7 October 2003 be granted.

(b) pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth), the proceeding be transferred to the Victoria District Registry.

(c) the respective parties’ costs of the motion be part of their costs of the proceeding.

2. In relation to proceeding W136 of 2003:

(a) the respondents’ notice of motion dated 4 September 2003 be granted.

(b) pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth), this proceeding be transferred to the Victoria District Registry.

(c) The respective parties’ costs of the motion be part of their costs of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the respondents it is submitted that these are not considerations that can be properly taken into account because the choice of solicitors is a matter for the applicants: cf BWK Elders (Australia) Pty Ltd v Westgate Wool Co Pty Ltd (No 6) [2002] FCA 807 at [25].CONCLUSION I am very aware of the submissions for the applicants that, as relatively small companies based in Perth with a firm of solicitors not possessed of interstate offices, any transfer to the Victorian registry may adversely affect them in the conduct of the litigation. However, I must apply the recognized tests on the present motions. Additionally it is appropriate to observe that the video-conference facilities of the Court in Perth would be available to the Perth based parties for interlocutory applications hearings and directions. Any anticipated adverse impact is capable of being substantially minimised. In relation to proceeding W136 of 2003, I consider, like von Doussa J in AMC Investments, that all factors considered, this case has a strong Victorian character. Particularly when the interests of all the other persons who might be involved as witnesses are taken into account, it becomes apparent that the ends of justice would best be achieved by having the matter heard in Melbourne and that it would be the most suitable place for the continuance and conduct of the proceedings. Either way, there will be additional inconvenience and expense to one or other of the principal parties because they have their bases in different cities. The inference from all the circumstances is that the lesser inconvenience and expense will occur if the matter is managed from the Victorian registry. Additionally there are possible advantages in having all interrelated litigation managed from one registry, which would not be the case if these proceedings continued in the Western Australia District Registry. In relation to proceeding W3007 of 2003, I have given consideration to the possibility that this proceeding will be stayed pending determination of the issues in proceeding W136 of 2003. That would favour not making any orders at present and holding the motion for transfer over until that determination. However, that course seems to me to deny the fundamental interconnection between this proceeding, proceeding W136 of 2003 and the Pasminco proceeding. To seek to hold proceeding W3007 of 2003 in abeyance would create an unnecessary artificiality when the evidence show that if that proceeding were to proceed, the most suitable and efficient place for the hearing and management of it would be in the Victoria District Registry. In reaching each of these views I have taken into account the effect of the choice of law clauses in W136 of 2003 but I consider that effect is outweighed by the other circumstances. The result is that I consider each of the notices of motion should be granted.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.