Eclectic Investments v Polymetals Group - [2010] NSWSC 300

CITATION: Eclectic Investments v Polymetals Group [2010] NSWSC 300

HEARING DATE(S): 13 April 2010

JURISDICTION: Equity Division
Commercial List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 13 April 2010

DECISION: I order that the defendants' notice of motion filed 17 December 2009 be dismissed with costs, and that the plaintiff's notice of motion filed on 1 March 2010 be dismissed with costs. I order that costs be set off.

CATCHWORDS: PROCEDURE – cross-vesting – application to cross-vest – application to stay proceedings or for court to decline to exercise jurisdiction – whether Supreme Court of Queensland the more appropriate forum – interests of justice – connecting factors – where contract concluded – where breach occurred – balance of convenience – location of relevant witnesses – availability of listing in commercial list in Queensland – not satisfied that Queensland is the more appropriate forum – UCPR r 12.11, Civil Procedure Act 2005 (NSW) s 70, Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) - LEGAL PRACTITIONERS – duties and liabilities – application to restrain solicitor from acting – where solicitor may be witness – whether conduct of party’s case could conflict with interests of solicitor – where no evidence that solicitor would not fulfil professional obligations – motion dismissed – Law Society of NSW Professional Conduct and Practice Rules 1995 r 19, Queensland Law Society Legal Profession (Solicitors) Rules 2007 r 13.4

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Law Society of NSW Professional Conduct and Practice Rules 1995
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Australasian Performing Right Association Ltd v Austarama Television Pty Ltd [1971] 2 NSWLR 467
Goldamere v Metso Minerals [2007] NSWSC 980
Hooker Town Developments Pty Ltd v Director of War Service Homes (1973) 47 ALJR 320
Kallinicos v Hunt (2005) 64 NSWLR 561
Mitchell v Burrell [2008] NSWSC 772
Pearlbran Pty Ltd v Win Mezz No 19 Pty Ltd [2009] QSC 292
Valceski v Valceski (2007) 70 NSWLR 36
Watkins v Christian [2009] QCA 101

PARTIES: Eclectic Investments Pty Ltd (Plaintiff)
Polymetals Group Pty Ltd (First Defendant)
Polymetals (Hellyer) Pty Ltd (Second Defendant)

FILE NUMBER(S): SC 2009/298746

COUNSEL: A P Cheshire (Plaintiff)
M J Walsh (Defendants)

SOLICITORS: McLachlan Thorpe (Plaintiff)
Cooper Grace Ward Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

13 April 2010 (ex tempore – revised 13 April 2010)

2009/298746 ECLECTIC INVESTMENTS PTY LIMITED v POLYMETALS GROUP PTY LIMITED

JUDGMENT

1 HIS HONOUR: These proceedings concern a share buy-back agreement made between the plaintiff (Eclectic) and the first defendant (Group) on about 19 October 2007. By that agreement, Group agreed to offer to buy back the ordinary shares held in it by Eclectic (subject to the passing of a special resolution of members of Group approving that buy-back) and Eclectic agreed to accept that offer. Clause 2.3 of the agreement specified that the price for the share buy-back…

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: [2010] NSWSC 300
Decision Date: 13 April 2010

CaseChat Overview and Summary

Eclectic Investments brought an application against Polymetals Group in the Supreme Court of New South Wales, seeking to cross-vest the proceedings to the Supreme Court of Queensland. The dispute arose from a contract for the sale of goods, which Eclectic Investments alleged was breached by Polymetals Group. The parties contested whether the Supreme Court of Queensland was the more appropriate forum to hear the matter, considering various connecting factors, including the location of the contract's conclusion and where the alleged breach occurred. Additionally, Eclectic Investments sought to restrain a solicitor from acting in the case, citing potential conflicts of interest, though no evidence was presented that the solicitor would not fulfil their professional obligations.

The court examined the application under the relevant cross-vesting provisions of the UCPR r 12.11, Civil Procedure Act 2005 (NSW) s 70, and the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). It considered the interests of justice, including the balance of convenience, the location of relevant witnesses, and the availability of a listing in the commercial list in Queensland. The court was not satisfied that the Queensland Supreme Court was the more appropriate forum for the proceedings. It also considered the application to restrain the solicitor under the Law Society of NSW Professional Conduct and Practice Rules 1995 r 19 and the Queensland Law Society Legal Profession (Solicitors) Rules 2007 r 13.4. The court found that there was no evidence suggesting the solicitor would not fulfil their professional obligations and dismissed the motion to restrain the solicitor from acting.

The cross-vesting application was dismissed, and the proceedings remained in the Supreme Court of New South Wales. The motion to restrain the solicitor from acting was also dismissed, as there was no evidence of potential conflicts of interest that would prevent the solicitor from fulfilling their professional obligations.

Orders