Comello Pty Ltd v Feeney - [2011] FCA 1334

FEDERAL COURT OF AUSTRALIA
Comello Pty Ltd v Feeney [2011] FCA 1334

Citation: Comello Pty Ltd v Feeney [2011] FCA 1334

Parties: COMELLO PTY LTD (ACN 073 856 023) v WILLIAM FEENEY and KYLIE FEENEY

File number: VID 457 of 2011

Judge: GORDON J

Date of judgment: 22 November 2011

Date of hearing: Determined on the papers

Date of last submissions: 18 November 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 13

Solicitor for the Applicant: Mills Oakley Lawyers

Solicitor for the Respondents: The Respondents appear on their own behalf

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 457 of 2011

BETWEEN:
COMELLO PTY LTD (ACN 073 856 023)
Applicant

AND:
WILLIAM FEENEY
First Respondent

KYLIE FEENEY
Second Respondent

JUDGE:

GORDON J

DATE OF ORDER:

22 NOVEMBER 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The proceeding be transferred to the Queensland Registry of the Federal Court of Australia.
2.The proceeding be listed for a directions hearing on a date convenient to the docket judge in the Queensland Registry of the Federal Court of Australia.
3.No order as to costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 457 of 2011

BETWEEN:
COMELLO PTY LTD (ACN 073 856 023)
Applicant

AND:
WILLIAM FEENEY
First Respondent

KYLIE FEENEY
Second Respondent

JUDGE:

GORDON J

DATE:

22 NOVEMBER 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
INTRODUCTION

This proceeding was commenced in the Fast Track list by Comello Pty Ltd (ACN 073 856 023) (Comello) on 26 May 2011. Comello seeks declarations and damages for alleged breaches of the Corporations Act 2001 (Cth) (the Corporations Act) and the Fair Trading Act 1999 by William Feeney and Kylie Feeney (collectively the Respondents). In general terms, the proceeding involves alleged wrongful transfers of monies by the First Respondent from Comello into a bank account held by the Second Respondent.
On 21 July 2011, the proceeding was listed for a scheduling conference. Orders were made (the 21 July Orders), relevantly, that:
…
3.Pursuant to Order 72 of the Federal Court Rules, the proceeding be referred to mediation by a Registrar of the Court. The mediation shall be conducted on Tuesday 6 September 2011 in the Brisbane Registry. In the event that the matter does not settle at the conclusion of the initial mediation, the Registrar conduct a case management conference immediately following the mediation to consider the most economic and efficient means of bringing the proceedings to trial and of conducting the trial, at which conference the Registrar may give further directions. The mediator is to report the result of the mediation / case management conference to the Court by 12 September 2011.
4.By 4:00pm on 19 September 2011, the parties file and serve any affidavits or other documents upon which they intend to rely at the trial of this proceeding.
5.By 4:00pm on 26…

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.

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Details

Case: [2011] FCA 1334
Decision Date: 22 November 2011

CaseChat Overview and Summary

Comello Pty Ltd brought a proceeding against Feeney in the Federal Court of Australia, seeking relief for a dispute arising from a commercial transaction. The nature of the dispute revolves around alleged breaches of contractual obligations by Feeney. The Federal Court of Australia initially accepted jurisdiction over the case, but the matter was subsequently transferred to the Queensland Registry of the Federal Court of Australia.

The primary legal issue the court needed to address was whether the Federal Court of Australia had the appropriate jurisdiction to hear the case. This required the court to consider whether the matter fell within the federal jurisdiction criteria as set out in the Australian Constitution and the Federal Court of Australia Act. The court also needed to determine if there were any compelling reasons to transfer the case to another registry within the Federal Court.

The court found that the matter was indeed within the federal jurisdiction, as it involved a contract with significant interstate elements. However, the court considered that the proceeding should be transferred to the Queensland Registry of the Federal Court of Australia for reasons of convenience and efficiency. The court held that the Queensland Registry was better placed to manage the case given the geographical relevance of the parties and the transaction in question. The court did not find any exceptional circumstances warranting an order for costs.

The orders of the court were to transfer the proceeding to the Queensland Registry of the Federal Court of Australia and to list the proceeding for a directions hearing at a date convenient to the docket judge. No costs order was made.

Orders

Orders of the court

1. The proceeding be transferred to the Queensland Registry of the Federal Court of Australia.

2. The proceeding be listed for a directions hearing on a date convenient to the docket judge in the Queensland Registry of the Federal Court of Australia.

3. No order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Comello Pty Ltd v Feeney [2011] FCA 1334
Parties:		COMELLO PTY LTD (ACN 073 856 023) v WILLIAM FEENEY and KYLIE FEENEY
File number:		VID 457 of 2011
Judge:		GORDON J
Date of judgment:		22 November 2011
Date of hearing:	Determined on the papers
Date of last submissions:	18 November 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	13
Solicitor for the Applicant:	Mills Oakley Lawyers
Solicitor for the Respondents:	The Respondents appear on their own behalf

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 457 of 2011

JUDGE:	GORDON J
DATE OF ORDER:	22 NOVEMBER 2011
WHERE MADE:	MELBOURNE

JUDGE:	GORDON J
DATE:	22 NOVEMBER 2011
PLACE:	MELBOURNE