Gray v Indianic Diving Services Pty Ltd - [2023] WASC 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GRAY -v- INDIANIC DIVING SERVICES PTY LTD [2023] WASC 166
CORAM:   LUNDBERG J
HEARD:   18 MAY 2023
DELIVERED          :   23 MAY 2023
FILE NO/S:   COR 206 of 2022
BETWEEN:   MICHAEL JAMES GRAY
Plaintiff
AND
INDIANIC DIVING SERVICES PTY LTD
First Defendant
INDIANIC SERVICES PTY LTD
Second Defendant
INDIANIC ASSETS PTY LTD
Third Defendant
INDIANIC GROUP PTY LTD
Fourth Defendant
JESSIE LEE STREET PARTNERSHIP
Fifth Defendant
NIGEL DAVID REES
Sixth Defendant
ROSSCOMMON NOMINEES PTY LTD
Seventh Defendant

Catchwords:

Corporate law - Practice and Procedure - Oppression action combined with partnership claims - Application to strike out paragraphs of a Statement of Facts Issues and Contentions document - Nature of a Statement of Facts Issues and Contentions document relative to a formal pleading - Challenge to plaintiff's standing to seek relief under the Partnership Act 1895 (WA) - Allegation that certain paragraphs irrelevant and scandalous - Importance of case management considerations - Paragraphs struck out with leave to replead - Turns on own facts

Legislation:

Corporations Act 2011 (Cth), ss 232 and 233
Partnership Act 1895 (WA), s 46
Property Law Act 1969 (WA), s 126

Result:

Application granted, with certain paragraphs struck out, with leave to re-plead

Category: B

Representation:

Counsel:

Plaintiff	:	C M Slater
First Defendant	:	S Penglis SC
Second Defendant	:	S Penglis SC
Third Defendant	:	S Penglis SC
Fourth Defendant	:	S Penglis SC
Fifth Defendant	:	S Penglis SC
Sixth Defendant	:	S Penglis SC
Seventh Defendant	:	S Penglis SC

Solicitors:

Plaintiff	:	Morgan Alteruthemeyer Legal Group
First Defendant	:	Bennett
Second Defendant	:	Bennett
Third Defendant	:	Bennett
Fourth Defendant	:	Bennett
Fifth Defendant	:	Bennett
Sixth Defendant	:	Bennett
Seventh Defendant	:	Bennett

Case(s) referred to in decision(s):

Bell Group NV (in liq) v Insurance Commission of Western Australia [2018] WASCA 179
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Great Southern Finance Pty Ltd (in liq) v Rhodes [2014] WASC 431; (2014) 103 ACSR 137
Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 3] [2021] WASC 260
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
Legal Practice Board v Said (Unreported, WASC, Library No 940003, 12 January 1994)
Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104; (2011) 84 ACSR 121
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398

Table of Contents

A. Introduction and summary

B. Background

Materials relied upon

Factual context

Originating process

C. Relevant principles

General

The role of the SFIC

D. SFIC [3] and [96] - [98] - Allegations as to the partnerships

Submissions

Disposition

E. SFIC [21], [22] and [23] - Irrelevant and scandalous allegations

Submissions

Disposition

Additional observation as to SFIC [22]

F. SFIC [24] - Allegation concerning…

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: [2023] WASC 166
Decision Date

CaseChat Overview and Summary

The defendants in this proceeding, which involves a claim for relief by the plaintiff under the Corporations Act 2001 (Cth), the Partnership Act 1895 (WA) and the Property Law Act 1969 (WA), sought to strike out various paragraphs of the plaintiff's Statement of Facts, Issues and Contentions (SFIC). The application was brought pursuant to Order 20 rule 19(1) Rules of the Supreme Court 1971 (WA) (RSC) and the inherent jurisdiction of the court. The application was heard on 18 May 2023, at which hearing the defendants were represented by Mr S Penglis SC. Mr C M Slater appeared for the plaintiff. The defendants' application was originally filed on 6 February 2023, but was sought to be amended shortly before the hearing. At the hearing on 18 May 2023, and in the absence of any discernible prejudice to the plaintiff, I granted the defendants leave to amend the application in terms of the minute dated 17 May 2023, allowing the defendants to challenge [3], [97] and [98] of the SFIC in addition to the originally challenged paragraphs, being [21], [22], [23], [24] and [96]. I have concluded that the following paragraphs of the SFIC should be struck out, with leave to replead, namely: [3] (part only), [21], [22], [23], [24], [96], [97] and [98] (part only). The orders were made on 22 May 2023.

Orders