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Dwyer v Hindal Corporate Pty Ltd

Dwyer v Hindal Corporate Pty Ltd

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
In the Matter of DSTORE LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION)
DWYER & ANOR v HINDAL CORPORATE P/L; MAXSTED & ANOR v ARNOLD BLOCH LIEBLER
Judgment of The Honourable Justice Debelle
21 January 2005
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS
Cross-vesting - company in liquidation - liquidators' actions in South Australian courts to recover preferential payments - application by defendants to transfer proceedings to Supreme Court of Victoria - interests of justice - relevant factors - application dismissed.
Jurisdiction of Courts (Cross-vesting) Act 1997 s 5 (2) (b) (iii); Corporations Act 2001 (Cth) s 1337H; Corporations Act 1990 (SA) s 44, referred to.
Bourke v State of New South Wales (1988) 22 FCR 378; Rosenboon v Qantas Airways Ltd (2002) 56 NSWLR 164; Re McKean (unreported, Federal Court, NSW, No 499 of 1996); Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1977) 139 FLR 54; St George Bank Ltd v McTaggart (2003) 2 Qd R 568, applied.
Bankinvest AG v Seabrook (1988) 14 NSWLR 711; BHP Billiton Ltd v Schultz [2004] HCA 61; Acton Engineering Pty Ltd v Campbell (1991) 103 ALR 437; Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460; James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357; Dawson v Baker (1994) 120 ACTR 11; Pegasus Leasing Ltd v Tieco International (Australia) Pty Ltd (1993) 61 SASR 195; Sihota v Pacific Sands Motel Pty Ltd (In Liq) (2000) 56 NSWLR 721; Continental Venture Capital Ltd v Amman Aviation Pty Ltd (In Liq) (2001) 53 NSWLR 687; Pegasus Leasing Ltd v Tieco International (Australia) Pty Ltd (1993) 61 SASR 195, considered.

DWYER & ANOR v HINDAL CORPORATE P/L; MAXSTED & ANOR v ARNOLD BLOCH LIEBLER
[2005] SASC 24
Civil:

DEBELLE J An application has been made by the defendants in each of two actions in this Court to transfer the action to the Supreme Court of Victoria. Both actions arise out of the liquidation of Dstore Ltd (Receivers and Managers Appointed) (in liquidation). Both applications were made pursuant to s 5 (2) (b) (iii) of the Jurisdiction of Courts (Cross-vesting) Act 1997. They were heard together. On the hearing of the applications, both defendants applied to amend their respective applications to rely on s 1337H of the Corporations Act 2001 (Cth). Leave to amend was granted.
Both actions have the same factual background. Dstore Ltd is a company in the Harris Scarfe Group of companies. On 3 April 2001 the plaintiffs were appointed joint and several voluntary administrators of 11 companies within the Harris Scarfe Group. Dstore Ltd is one of the companies in the Group and the plaintiffs were also appointed as joint and several voluntary administrators of Dstore Ltd.
On 6 April 2001, that is to say, three days after the plaintiffs had been appointed administrators of Dstore, receivers and managers were appointed…

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: [2005] SASC 24
Decision Date: 21 January 2005

CaseChat Overview and Summary

The case of Dwyer v Hindal Corporate Pty Ltd involved the liquidators of a company in liquidation seeking to recover preferential payments from the defendants. The defendants applied to transfer the proceedings to the Supreme Court of Victoria, arguing that the events and witnesses related to the case were located in Melbourne. The case was heard in the South Australian District Court, with the key issue being whether the proceedings should be transferred to another jurisdiction in the interests of justice.

The court considered the factors relevant to determining the appropriate forum, including the location of events and witnesses, the cost and inconvenience to witnesses for both parties, and the efficiency of having one court determine the common issues across multiple actions. The court found that while the events did occur in Melbourne and some witnesses resided there, the overall cost and inconvenience to the witnesses for both parties largely cancelled each other out. The court also emphasised the importance of maintaining consistency in the judicial determination of common issues across related cases to ensure an efficient and expeditious administration of the liquidation.

In the end, the court decided that the interests of justice favoured keeping the proceedings in the South Australian District Court. The court recognised that transferring the case could disrupt the binding decisions already made in this Court and potentially lead to inconsistent outcomes. Additionally, the cost of copying a large volume of documents for the defendants was deemed a minor factor but contributed to the decision. Therefore, the applications to transfer the proceedings and for a stay were dismissed.

The court's final orders were to dismiss both the applications to transfer the proceedings to the Supreme Court of Victoria and the applications for a stay. The court held that the defendants had not demonstrated a clear and compelling basis for such orders.

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

DEBELLE J

Thus, the defendants’ contentions boil down to the fact that all of the events leading to and surrounding the payment occurred in Melbourne and that a number of witnesses reside in Melbourne. These are important and relevant factors. They will often be decisive factors. However, it is necessary to have regard to all relevant factors. It is necessary to consider with the cost and inconvenience to the defendants’ witnesses, the fact that, if the action is transferred to the Supreme Court of Victoria, there will be a like cost and inconvenience to the plaintiffs’ witnesses. It is not possible to compare them accurately. However, broadly speaking, it is a case of one party’s advantage being another party’s disadvantage. In my view, the respective costs and inconvenience cancel one another out or, if they do not, there is not a sufficient difference to lead to the conclusion that the Supreme Court of Victoria is the more appropriate forum.Conclusion After weighing the relevant factors I believe that the balance favours an order dismissing each of these applications. The cost and inconvenience to witnesses to be called by each party tend to cancel each other out. Although the relevant conduct occurred in Melbourne with the consequence that there is a close connection with the Supreme Court of Victoria, that factor is outweighed by the desirability of one court hearing and determining the common issues in these and the other actions claiming the recovery of preferential payments. Although there are only 13 other such actions, five of which are in this Court, it is desirable that all of the actions remain in this State so that there will be one decision on the common issues in this Court which will bind both the District Court and the Magistrates Court. If these two actions are transferred, the advantage of a binding decision will be lost. These factors will be conducive to an efficient and expeditious administration of the liquidation. The fact that the liquidators should not be required to incur the cost of copying a very substantial volume of documents is not a weighty factor but, nevertheless, assists in tipping the scales in favour of the actions remaining in this Court. In short, the interests of justice point to the desirability of litigating these issues in this Court. For all of these reasons, I do not believe that the Supreme Court of Victoria is the more appropriate forum. For these reasons I dismiss both applications. For like reasons, I dismiss the applications for a stay. An applicant for a stay must demonstrate a clear and compelling basis for that order: Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54 at 58; St George Bank Ltd v McTaggart (2003) 2 Qd R 568 at [17]. The applicants have not demonstrated why such a stay should be ordered

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J

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