| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 10329 of 2009
| EVEREST PROJECT DEVELOPMENTS PTY LTD (ACN 055 285 259) | Plaintiff |
| v | |
| WESTPAC BANKING CORPORATION (ACN 007 457 141) | Defendant |
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JUDGE: | VICKERY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2009 | |
DATE OF RULING: | 2 December 2009 | |
CASE MAY BE CITED AS: | Everest Project Developments Pty Ltd v Westpac Banking Corporation | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 563 | |
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PRACTICE AND PROCEDURE – Application for a temporary stay of a proceeding pending determination of another proceeding – Inherent jurisdiction to grant a stay – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. O’Brien | Russell Kennedy |
| For the Defendant | Mr T. Woodward | Allens Arthur Robinson |
| For Brady Constructions Pty Ltd | Mr A. Schlicht | Piper Alderman |
HIS HONOUR:
The applications in this matter arise from a banker's guarantee dated 4 October 2007 issued by Westpac Banking Corporation at the request of Brady Constructions Pty Ltd (“Brady”).
A call was made on that bank guarantee in the sum on $738, 752. The matter was then brought before Senior Member Cremean of the Victorian Civil and Administrative Tribunal (“VCAT”) for an injunction restraining Everest from calling upon the bank guarantee.
The senior member refused to grant the injunction that was sought. Subsequently that decision has been appealed to the Supreme Court, (“the VCAT appeal”). The VCAT appeal is due to be heard before Emerton J on 16 December 2009.
On 25 November 2009, the plaintiff, in proceeding number S CI 2009 10329, Everest Project Developments Pty Ltd (“Everest”) issued an originating motion against the defendant, Westpac Banking Corporation (“Westpac”).
Everest seeks an order that its proceeding, commenced by its recent originating motion, be heard and determined immediately following the hearing of the VCAT appeal, due to be heard by Emerton J on 16 December 2009.
It is said by Everest that its proceeding against Westpac is a relatively straightforward proceeding involving little factual controversy. It is said that it essentially involves the legal effect of factual events which occurred on the morning of 4 May 2009 when, upon handing down of Senior Member Cremean's decision, and prior to any appeal or stay application being commenced, Everest made a further call on the bank guarantee on Westpac demanding the payment of a sum of $738,752. In its proceeding, Everest claims that it was entitled to make this further call, and that Westpac was obliged to pay on the bank guarantee pursuant to that call.
On behalf of Westpac and Brady, it is submitted that the matter involving the VCAT appeal essentially involves the question as to whether or not the VCAT senior member, in refusing the grant of injunction, erred by, amongst other things, failing to take into account properly or at all the questions of balance of convenience.
On the other hand, they say that the matter arising from the failure to pay on the part of Westpac on 4 May 2009, when the further…
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- Case
- [2009] VSC 563
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it had the inherent jurisdiction to grant a temporary stay of the proceedings and whether such a stay was appropriate in the circumstances. The court considered the potential for prejudice to both parties if the proceedings were to continue without a stay, and the possibility that the other proceeding could impact the resolution of the current case. The court also assessed whether the applicant had acted promptly in making the application and whether there were any other factors that could influence the decision.
The court found that it did have the inherent jurisdiction to grant a temporary stay of the proceedings, as it was necessary to prevent an abuse of process and to ensure that the parties did not incur unnecessary costs and expenses. The court concluded that the applicant had demonstrated a sufficient likelihood of prejudice if the stay was not granted and that the balance of convenience favoured a temporary stay. The court was satisfied that the applicant had acted promptly and that there were no other factors that would prevent the grant of the stay. Accordingly, the court granted the application and ordered a temporary stay of the proceedings pending the determination of the other proceeding.
The final orders of the court included a direction for the applicant to provide written undertakings as to costs and a requirement for the parties to update the court on the progress of the other proceeding. The stay was to remain in effect until further order of the court.
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