Bajaj v Bajaj - [2010] WASC 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BAJAJ -v- BAJAJ [2010] WASC 1

CORAM: SIMMONDS J

HEARD: 9 DECEMBER 2009

DELIVERED : 4 JANUARY 2010

FILE NO/S: COR 214 of 2006

BETWEEN: SANJEEV SINGH BAJAJ
Plaintiff
AND
AMARJEET SINGH BAJAJ
First defendant
SAGELINE HOLDINGS PTY LTD (ACN 110 462 407)
Second defendant
BANK OF WESTERN AUSTRALIA LTD
Third defendant

Catchwords:

Practice and procedure - Plaintiff seeks leave to discontinue - Turns on own facts

Legislation:

Corporations Act 2001 (Cth)
Rules of the Supreme Court 1971 (WA)

Result:

Leave to discontinue proceedings granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr S D Majteles
First defendant              :     No appearance
Second defendant          :     No appearance
Third defendant            :     No appearance

Solicitors:

Plaintiff:     Lavan Legal
First defendant              :     In person
Second defendant          :     No appearance
Third defendant            :     No appearance

Case(s) referred to in judgment(s):

IBN Corporation Pty Ltd v The Banjyma Aboriginal Corporation [2009] WASC 279
Pharmaust Ltd v Advance Healthcare Group Ltd [2007] WASC 125
SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 118

SIMMONDS J: This is a return of an application by chamber summons for leave to discontinue the proceedings in COR 214 of 2006. These proceedings, which have a somewhat protracted history, have not reached a hearing on the merits. The orders sought by the plaintiff provide that the proceedings in COR 214 of 2006 be discontinued. This is the appropriate form of order to be made when an application for leave to discontinue is accepted. See LexisNexis, Civil Procedure WA [23.2.4].
The orders sought by the plaintiff do not include any provisions dealing with the commencement of subsequent proceedings of the same or similar kind and expressly provide for no order as to costs. It is my determination that the application should be granted in terms of the orders sought, which also include an order waiving the requirement for conferral under O 59 r 9. These are my reasons for so ordering.
I begin by briefly describing the protracted history I have referred to. I then describe my jurisdiction to make the present orders and explain why I made the orders I did.

History of the proceedings

So far as the history of the proceedings in COR 214 of 2006 is concerned, the originating process, seeking relief primarily under Corporations Act2001 (Cth) (the Act) s 233 and dated 27 December 2006, was filed on 28 December 2006.
That originating process concerned the conduct of the first defendant as a director of the second defendant. The conduct was said to be contrary to the Act s 180, s 181 and s 182, which are provisions about the general duties of directors. The conduct was also said to be conduct oppressive or unfairly prejudicial to the interests of the plaintiff as shareholder in the second defendant, by virtue of the first defendant's shareholding in the second defendant.
Based on 'the [f]acts in the supporting affidavits', the originating process claimed orders for the regulating…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bajaj v Bajaj

Details

AGLC: Bajaj v Bajaj [2010] WASC 1
Case: [2010] WASC 1
Decision Date: 4 JANUARY 2010

CaseChat Overview and Summary

Bajaj v Bajaj involved a plaintiff who sought leave to discontinue their proceedings. The dispute centred around the terms, if any, on which the plaintiff should be allowed to discontinue the proceedings, particularly whether they should be required to undertake not to bring any subsequent proceedings on the same causes of action. The case was heard in the Supreme Court of Western Australia.

The central legal issue before the court was whether the plaintiff should be required to provide an undertaking that it would not bring any subsequent proceedings on the causes of action, given that the plaintiff had already secured a substantial part of what it sought through other means. The court considered whether it should impose any conditions, such as an undertaking or provisions related to issue estoppel, on the discontinuance of the proceedings. It examined whether such terms were necessary in the interests of justice and whether the parties had sought any specific orders regarding these matters.

The court concluded that there was no necessity to impose any conditions on the discontinuance, such as an undertaking or provisions regarding issue estoppel. It reasoned that since the plaintiff had already achieved a significant part of its objectives and the first defendant had not contested the discontinuance, it was in the interests of justice to allow the plaintiff to discontinue without any restrictions. The court noted that the plaintiff had not explicitly sought orders that would permit it to pursue its causes of action subsequently, but the effect of the discontinuance without any provisions would be that it is not a defence to further proceedings. Given that neither party sought orders regarding costs, the court decided to make no orders as to costs.

The court ultimately decided to grant the plaintiff's application to discontinue without imposing any conditions, thereby allowing the plaintiff to potentially pursue its claims in the future without being bound by any specific undertakings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There is the question of whether or not the leave should be granted only on terms that the plaintiff undertake to bring no subsequent proceedings on causes of action in COR 214 of 2006, this being said to be highly desirable. The parties should not be left in an uncertain state as to what further litigation may be brought concerning the same subject matter: SCI Operations (182) (Sheppard J). These terms can be imposed: see IBN Corporation where the court required an undertaking not to bring proceedings, and Civil Procedure WA [23.2.7]. However, the court need not require any such undertaking or make other provisions, such as in relation to whether or not any estoppel arises from the discontinuance, in its orders as to the discontinuance: see Pharmaust Ltd v Advance Healthcare Group Ltd [2007] WASC 125 (Le Miere J). Where orders without any such provisions are made, the court should be inclined so to proceed, it seems to me, where the other side has not sought to persuade it to make orders to another effect, and where it is apparent to the court that in the interests of justice it should make those orders. In this case it seems to me that the plaintiff has secured by other means a substantial part of what it sought by its originating process when control of the second defendant was taken over. However, there remains a significant part of what it sought that was not secured, principally relief for the way in which the plaintiff alleged the first defendant conducted the business of the second defendant. It is not apparent from the history of the proceedings in COR 214 of 2006 that it must fail in that latter respect. Further, the first defendant has not taken any part in the proceedings on the chamber summons to put forward another view. In those circumstances, it seems to me that it is in the interests of justice, where there has been no hearing on the merits, that the plaintiff not be prevented, by a requirement for undertakings, from pursuing its causes of action subsequently. The plaintiff has not sought orders that would expressly permit it to pursue such causes of action; however, the effect of making an order without provision as to future proceedings would seem to be that the discontinuance of itself is not a defence to further proceedings: Civil Procedure WA [23.2.9]. Nor, it seems to me, is there any issue estoppel that would arise here. In any event, neither party has sought orders with respect to such an estoppel. In these circumstances, I determine that no orders in respect of any cause of action or issue estoppel are called for in the interests of justice. This takes me to the matter of costs. Again the first defendant has not sought any orders in that regard. The plaintiff's orders are for no orders as to costs, as I have indicated, and the only orders as to costs in any of the interlocutory proceedings in this matter were costs reserved or no order as to costs. The court has the power to make the order that the plaintiff seeks: see Pharmaust Ltd, where such an order was made. Such an order would be appropriate where the discontinuing party began and continued its action reasonably until the purpose to be served by continuing its proceedings had largely ceased in circumstances that it should not have foreseen: see Pharmaust Ltd [34].