Clivpee Ltd (in administration), In the matter of
[2010] NSWSC 1215
•11 October 2010
CITATION: Clivpee Ltd (in administration), In the matter of [2010] NSWSC 1215 HEARING DATE(S): 11 October 2010
JUDGMENT DATE :
11 October 2010JURISDICTION: Equity Division
Corporations ListJUDGMENT OF: Palmer J EX TEMPORE JUDGMENT DATE: 11 October 2010 DECISION: Application dismissed. CATCHWORDS: PRACTICE AND PROCEDURE – CROSS VESTING – whether nine cases in NSW Supreme Court should be transferred to Victorian Supreme Court – whether transfer conducive to efficient administration of corporate insolvency – no question of principle. LEGISLATION CITED: Corporations Act 2001 (Cth) – s 1337H
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) – s 5(2)CATEGORY: Procedural and other rulings CASES CITED: Global Realty Development Corporation v Dominion Wines Ltd (in liq) [2005] NSWSC 1221 FILE NUMBER(S): SC 10/280902; 10/296482; 10/308824; 10/314373; 10/314377; 10/314378; 10/315616; 10/323855; 10/330174 COUNSEL: D.L. Cook (Plaintiffs in 10/296482, 10/308824, 10/314373, 10/314377, 10/314378, 10/315616, 10/323855)
J.M. White (Plaintiff in 10/330174)
G. Lucarelli (1st to 3rd Defendants
C.D. Wood (4th & 5th Defendants)SOLICITORS: Polczynski Lawyers (Plaintiffs in 10/296482, 10/308824, 10/314373, 10/314377, 10/314378, 10/315616, 10/323855)
Holman Webb (Plaintiff in 10/330174)
G. Lucarelli (1st to 3rd Defendants)
C.D. Wood (4th & 5th Defendants)
In the matter of Clivpee Ltd (in administration):
10/280902 Toshiba (Aust) Pty Ltd v Clivpee Ltd & Ors
10/296482 Acer Computers Pty Ltd v Clivpee Ltd & Ors
10/308824 Dux Manufacturing Ltd v Clivpee Ltd & Ors
10/314373 Caroma Industries Ltd v Clivpee Ltd & Ors
10/314377 Breville Pty Ltd v Clivpee Ltd & Ors
10/314378 Mitsubishi Electric Australia Pty Ltd v Clivpee Ltd & Ors
10/315616 Hagemeyer Brands Pty Ltd v Clivpee Ltd & Ors
10/323855 Ingram Micro Pty Ltd v Clivpee Ltd & Ors
10/330174 Electrolux Home Products Pty Ltd v Clivpee Ltd & Ors
JUDGMENT – Ex tempore
11 October , 2010
1 This is a series of applications by the receivers and the administrators of Clivpee Limited for the transfer of nine proceedings in this Court to the Supreme Court of Victoria.
2 The applications are made either pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) or, if the more appropriate statutory jurisdiction is that of the Corporations Act, then, pursuant to s 1337H of the Corporations Act 2001 (Cth). It is said that the Corporations Act may be the more appropriate statutory jurisdictional basis because all proceedings are appeals from decisions of the receiver to reject certain claims by creditors of the company in administration and also in receivership.
3 It does not really matter, for the purposes of determining these applications, whether the jurisdiction being exercised is that of the Jurisdiction of Courts (Cross-vesting) Act or the jurisdiction afforded to the Court, pursuant to s 1337H of the Corporations Act. As Barrett J says in Global Realty Development Corporation v Dominion Wines Ltd (in liq) [2005] NSWSC 1221 at [14] ff, the essential considerations of discretion to be exercised under both the Jurisdiction of Courts (Cross-vesting) Act and s 1337H of the Corporations Act are the same.
4 If need be, I would have granted leave to amend the Plaintiff's applications to add a claim based under s 1337H of the Corporations Act. The result is the same, regardless of which jurisdiction was invoked, as a matter of substance.
5 I intend to deal only briefly with the relevant considerations.
6 There are nine separate proceedings in this Court in which creditors of Clivpee Limited wish to appeal from decisions of the receivers rejecting their claims. Mr Lucarelli of Counsel, who appears for the receivers, points to the fact that both the receivers and the administrators are located in Victoria because Clivpee's business head office was in Victoria, although it conducted business in New South Wales and probably other States as well.
7 Mr Lucarelli submits, with his customary eloquence and cogency, that it would be conducive to the efficient and expeditious administration of Clivpee's affairs, both in receivership and in administration, that one Court, and probably one Judge of that Court, case manage – if not hear – all these applications as well as any future applications of a similar nature. Mr Lucarelli frankly concedes, however, that he cannot say that either the factual issues or the legal issues in the nine proceedings in this Court are so closely aligned as to justify an order that all proceedings be heard together, the evidence in one being evidence in the other.
8 He says, however, that there is already, in the Victorian Supreme Court, a substantial piece of litigation which may involve some of the issues which may arise in some of the nine proceedings in this Court, but he does not say that the similarity of issues would provide any template for management of the nine proceedings in this Court.
9 In a very corporate large insolvency, special arrangements are sometimes made in a court to have one judge case manage a variety of different applications which may be made in that administration so as to produce some sort of cost and time efficiency. If those arrangements were already in place for the administration of Clivpee in the Victorian Supreme Court, that may well have been a weighty factor in the exercise of discretion in this case.
10 However, the circumstances in this case are that, apart from one piece of litigation already in the Supreme Court of Victoria, all other litigation involving rejection of creditors' claims by the receivers has been commenced in this Court. The effect of what the receivers and administrators are asking is that nine cases from the New South Wales Supreme Court be added to the one case in the Victorian Supreme Court, supposedly in the interests of efficient administration of the insolvent affairs of Clivpee.
11 The fact that these nine cases are appeals from the decisions of the receivers and administrators does not alone warrant a conclusion that any real economy in terms of cost or time saving would be achieved by the transfer of the proceedings to Victoria.
12 Mr Lucarelli suggests that the nine cases in this Court could be case managed together. I think it is fair to say that that position at the moment appears to be no more than a desirable possibility, having regard to the various factual and legal issues that may arise severally in each of these proceedings. Certainly, none of the Plaintiffs in these proceedings could agree today on a common timetable for case management or even on a common date for a future directions hearing.
13 It may be, in the longer term, that if these cases proceed in the New South Wales Supreme Court, one Judge – whether it be in the General List of the Equity Division or the Corporations List – comes to be sufficiently familiar with the general contours of all proceedings so that that he or she can effectively case manage all the litigation in an efficient and cost-saving manner. However, that remains to be seen, as the issues in each proceeding emerge.
14 It is sufficient for present purposes to say that nothing has been made to appear at this stage which warrants the transfer of proceedings, quite properly commenced in the New South Wales Supreme Court, to the Victorian Supreme Court.
15 I therefore dismiss these applications.
1
1
2