Everest Project Developments Pty Ltd v Westpac Banking Corporation - [2009] VSC 563

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…

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: [2009] VSC 563
Decision Date: 2 December 2009

CaseChat Overview and Summary

Everest Project Developments Pty Ltd, the applicant, sought a temporary stay of a proceeding pending determination of another proceeding against Westpac Banking Corporation, the respondent, in the Federal Court of Australia. The dispute arose from the applicant's claim against the respondent for alleged breaches of contract and unjust enrichment in relation to a development project. Everest argued that the stay was necessary to avoid the risk of conflicting outcomes, as the other proceeding could potentially affect the outcome of the current case.

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.

Orders