Hermes Far Eastern Shining Pty Ltd v Potable Gold Strike Pty Ltd
[2024] TASSC 39
•9 July 2024
[2024] TASSC 39
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Hermes Far Eastern Shining Pty Ltd v Potable Gold Strike Pty Ltd [2024] |
| TASSC 39 | |
| PARTIES: | HERMES FAR EASTERN SHINING PTY LTD |
| v | |
| POTABLE GOLD STRIKE PTY LTD | |
| FILE NO: | 438/2022 |
| DELIVERED ON: | 9 July 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 24 June, 2 July 2024 |
| JUDGMENT OF: | Porter AJ |
| CATCHWORDS: |
Courts – Jurisdiction and Powers – Concurrent jurisdiction of different courts – Transfer of proceedings under cross-vesting legislation – Where appropriate and in interests of justice -Generally – Where related proceedings in another State – Meaning of "related to" in the legislation – Likelihood of same issues of fact being decided in different proceedings – Transfer appropriate and in the interests of justice.
Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5(2).
Seymour v Devine [2003] WASC 260; Amalia Investments Ltd v Virgtel Global Networks NV (No 2) [2011]
FCA 1270, 198 FCR 248, considered.
Aust Dig Courts and Judges [8]
REPRESENTATION:
Counsel:
Plaintiff: B McTaggart SC Defendant: C Gunson SC, A Clarkson
Solicitors:
Plaintiff: Cronin Miller Litigation Defendant: Dobson Mitchell Allport
| Judgment Number: | [2024] TASSC 39 |
| Number of paragraphs: | 41 |
Serial No 39/2024 File No 438/2022
HERMES FAR EASTERN SHINING PTY LTD v POTABLE GOLD STRIKE PTY
LTD
| REASONS FOR JUDGMENT | PORTER AJ 9 JULY 2024 |
| Introduction |
1 On 2 July 2024, I made orders granting two interlocutory applications and said I would later publish reasons. These are those reasons.[1] The first application, filed on 21 February 2024, is an application by the plaintiff to transfer this proceeding to the Sydney Registry of the New South Wales Supreme Court pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (the Act). (The application was put alternatively as one to stay these proceedings until the determination of proceedings in the Supreme Court of New South Wales; Communitas v Infinity Form of Yellow Pty Ltd; "the Communitas proceedings". At the hearing, that alternative application was neither addressed in submissions nor expressly abandoned.). Section 5(2) of the Act relevantly provides as follows:
[1] The original version was published only to the parties. This version has been revised to cater for general publication.
"Transfer of proceedings
…
(2) Where:
(a)
a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and
(b) it appears to the first court that:
(i)
the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;
…
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory; the first court shall transfer the relevant proceeding to that other Supreme Court."
2 The second application is an application by the defendant made on 24 April 2024 – some two months after that of the plaintiff – to amend its defence dated 14 July 2022. Due to a lack of judicial
resources, there was regrettable delay in the Court being able to provide hearing dates, with the two applications ultimately being listed on the one day, 24 June 2024. That delay was particularly unfortunate, given that a trial date of 5 August 2024 had been allocated by the Registrar on 14 December 2023. That trial date, of course, has significance in the two applications.
3 The parties did not agree as to the way in which the two applications should be determined relative to one another. The plaintiff's position is that the transfer application should be heard and determined first; if there is a transfer, the amendment is a matter for the New South Wales Supreme Court. The defendant's position was that the applications be heard concurrently and although strongly opposing the transfer, says that if such an order is to be made then the amendment question needs to be resolved before that order is made.
4 The two applications are inter-related. In opposing the transfer application, the defendant places heavy reliance on the settled trial date. A fixed trial date is undoubtedly a very substantial factor in considering the interests of justice as referred to in s 5(2) of the Act: Dawson v Baker (1994) 123 FLR 194; Sim v Williams [2002] NSWSC 37. The plaintiff's opposition to the amendment is based on prejudice caused by the lateness of the proposal to amend, given the imminent trial date. It submits an adjournment may be necessary to address the consequences for the pleadings and discovery.
5 Accordingly, while accepting that a transfer would of necessity cause the abandonment of the trial date with some expected delay before the matter could be listed in New South Wales, the plaintiff
relied – in part at least – on the present listing to oppose the amendment. At the same time, the defendant
strenuously opposes transfer, but does so in the face of a risk of the consequential need for an adjournment caused by its application to amend. The application to transfer was filed first in time and is the more substantive matter. I will consider that application first, and without any presumption about the outcome of the other.
6 The corporate entities and individuals involved, and the essential background to these proceedings and the chronology of their progression is set out in paragraphs [9] to [61] inclusive of the affidavit of Alana Ryzner affirmed on 19 June 2024. Ms Ryzner is a partner in the firm which acts for the plaintiff, for Ms Drew Porter personally, (Ms Porter is a director of the plaintiff), and for Infinity- Forms of Yellow Remember Pty Ltd (Infinity) which is the defendant in the Communitas proceedings. Details of the Communitas proceedings are set out in pars [62]-[87] inclusive of the affidavit. That summary is not controversial. Particularly relevant parts are set out in the appendix to these reasons, with references to annexures omitted.
7 Before proceeding though, I should note some details. The property in respect of which the plaintiff claims a beneficial interest is known as Caprice. The plaintiff company is registered in northern New South Wales. It has four directors, one of whom is Ms Porter. The defendant's registered office is in Brisbane, having previously been registered at an address in northern New South Wales. Rosette Communitas is the sole director and shareholder, and she is a plaintiff in the Communitas proceedings.
8 Mercury 5 Sky Pty Ltd is also a plaintiff in the Communitas proceedings. It has the same registered office as the defendant in these proceedings, with Ms Communitas the sole director and shareholder. Infinity has its registered office at an address in northern New South Wales. The sole director and shareholder is Ms Porter. Another relevant entity is Morning Star Financial Services Pty Ltd (Morning Star) which was de-registered on 24 April 2015. Its registered office was an address in northern New South Wales. At the time of its deregistration, according to ASIC records, there were three directors; Ms Communitas, Gerald Atrill, and Theme Rains.[2] (Mr Atrill died on 29 December 2013.)
The transfer application
[2] Ulea Days ceased to be a director about two weeks before deregistration.
9 Much has been written about the approach to s 5 of the Act and its equivalents. The seminal cases seem to be Bankinvest AG v Seabrook (1988) 1 NSWLR 711, James Hardie and Co Pty Ltd v Barry [2000] NSWCA 535, 50 NSWLR 357 and BHP Billiton Limited v Shultz [2004] HCA 61, 221 CLR 400. Useful summaries have been provided in such cases as Valceski v Valceski [2007] NSWSC 440 at 69 and H v D [2012] WASC 291 at [16]-[20] cited most recently in Zhang v Zhang [2024] VSC 3 at [44].
10 In H v D, Pritchard J made the following points:
• If it appears to the Court that the criteria set out in the legislation are established then it is required to exercise the power of transfer. • No particular significance attaches to the plaintiff's choice of forum; it is both necessary and sufficient that in the interests of justice the second Court is more appropriate to determine the proceedings. • The interests of justice necessarily include justice to all parties to the proceedings and it may also be necessary to take into account interests wider than those of the parties to the proceeding. • The decision calls for a "nuts and bolts" management decision as to which Court is the more appropriate to hear and to determine the substantive dispute. • Whether the transfer of proceedings in the interest of justice is a value judgment to be made having regard to circumstances of the case. 11 In this case both ss 5(2)(b)(i) and 5(2)(b)(iii) are called in aid. The first limb of s 5(2) has two aspects; it must appear to this Court, as the first Court, that the proceeding arises out of or is related to another proceeding in the Supreme Court of another State, and that it is more appropriate that the proceeding be dealt with in the other Court. Subsections (2)(b)(i) and (iii) are not expressed to be conjunctive. However, in Anderson v McPherson [2009] WASC 35, Johnson J said that on each of the three tests it is necessary to establish that a transfer "is in the interests of justice", but for the first, that requirement is merely a component of the "appropriateness" aspect. Of course, the question of the interests of justice in the third limb is to be approached on the basis of which forum is more appropriate: see also James Hardie v Barry at 377.
12 The first question is whether these proceedings are related to the Communitas proceedings as submitted by the plaintiff. In Seymour v Devine [2003] WASC 260, Pullin J said that the expression "related to" in this legislation, should be given a wide rather than a restricted meaning. Those comments have been later referred to many times: see for instance H v D (above) and The President's Club Ltd v Palmer Coolum Resort Pty Ltd [2019] QSC 209. His Honour recognised that the mere existence of some issues common to both proceedings will not necessarily establish that the proceedings are related: see also Anderson (above). Further, the sufficiency of the relationship may be more difficult to establish when a third party is involved in one or other of the proceedings.
13 In Amalia Investments Ltd v Virgtel Global Networks NV (No 2) [2011] FCA 1270, 198 FCR 248 at [41], Greenwood J summarised the situation by reference to various authorities as follows. (I have omitted some of the authorities referred to.) Proceedings are ones that are "associated or connected", Re Hamilton-Irvine (1990) 94 ALR 428 at 433, Bell Group Ltd v Westpac Banking Corporation [2000] FCA 439, 104 FCR at [186]-[203]; or where a "substantial and common question" arises in both proceedings, Mattock v Mattock (1989) 13 Fam LR 288 at 290; or where the "facts and circumstances in the two proceedings appear to be intertwined, Foley v Green [2011] VSC 155 at [21]. This passage from Amalia was set out in Zhang (above).
14 Assessing whether this proceeding is related to the Communitas proceedings can really only be judged on a comparison of the pleadings, assisted by the uncontentious factual background. In the proceedings in this Court, the plaintiff alleges the following.
(a)
The existence of the "Hermes Community", dedicated to certain ideals and of which Ms Communitas was a member.
(b)
The existence of a "Covenant" which included an undertaking to act in the best interests of the plaintiff, and which Ms Communitas signed on about 26 April 2005.
(c)
An agreement in early 2005 between the plaintiff and Morning Star that the plaintiff would provide funds to Morning Star to enable the purchase of the property Caprice, and Morning Star would hold that property on trust for the plaintiff.
(d)
A member of the community provided funds to Morning Star to be applied towards the purchase of the property, and Morning Star in fact purchased Caprice.
(e)
From April 2005 to March 2014 the plaintiff occupied Caprice and paid weekly amounts in reduction of the loan secured by a mortgage over Caprice. It carried out permanent improvements to, and was responsible for ongoing maintenance of, the building and land.
(f)
In 2006 a vacant block adjacent to Caprice (the vacant land) was purchased by Morning Star for the benefit of the plaintiff, using funds obtained by the re-financing of the loan secured by the Caprice mortgage.
(g)
In about July 2013 at a meeting involving Ms Communitas, Ms Porter, Gyrin Gyrfalcon and Salsa Junior, all made express declarations that the Caprice was to remain held on trust for the benefit of the plaintiff until such time as the legal title could be transferred to it.
(h)
In March 2014, at the direction of Ms Communitas, Caprice was listed for sale and was ultimately transferred to the defendant on or about 6 March 2015.
(i)
On 9 August 2015, Ms Communitas, acting in a personal capacity and in a capacity as director and shareholder of the defendant, told the plaintiff that the defendant would hold Caprice on trust for the plaintiff.
15 I note that although there is an allegation that the vacant land was purchased by Morning Star for the benefit of the plaintiff, no relief is sought in respect of that property. However, the vacant land does feature in the Communitas proceedings.[3]
[3] In the Hermes proceeding in this Court, the address of the vacant land is given as 851 Cygnet Coast Road, while that in the Communitas proceedings is 852 Cygnet Coast Road, Wattle Grove It can be readily inferred from the two sets of pleadings and the written submissions that the land referred to in each proceedings is the same vacant land.
16 The Communitas pleadings are far more complex and there is no doubt the factual matrix and the claims give rise to a much greater scope of contention than exist in the Hermes proceedings in this Court. In short, Ms Communitas claims (among other things) an equitable interest in a property in New South Wales at Luffley Mountain. In those proceedings, the plaintiffs allege the following:
(a)
Gerald Atrill was the founder, figurehead and spiritual leader of the Infinity-Forms of Yellow Remember Community, and a director of Infinity until his death in December 2013.
(b)
Infinity manufactured and sold alchemically imbued healing products up to about 2002, after which Hermes [the plaintiff in the present action in this Court] took over its commercial activities.
(c)
In about April 2005, at the instruction of Gerald Atrill, Ms Communitas obtained a loan on behalf of Morning Star for the purposes of purchasing Caprice and was one of three personal guarantors in respect of the loan, the others being Atrill and Theme Rains.
(d)
At Atrill's instructions, Ms Communitas paid the mortgage payments in respect of the Caprice loan together with "all related property costs including repairs, maintenance rates and taxes".
(e)
In about October 2006, Atrill instructed Ms Communitas to secure a loan through Morning Star to purchase the vacant land. This was done by way of the security of the first mortgage over Caprice, and a first mortgage over the vacant land together with personal guarantees from three individuals, one of which was Ms Communitas.
(f)
After the purchase of the land, Ms Communitas "was responsible for continuing to pay" the re- financed loan and pay all property costs in respect of both Caprice and the vacant land.
(g)
In December 2006, Ms Communitas established a company, Mercury 5 Sky Pty Ltd which was then used as the vehicle to pay to Morning Star "property costs". (These costs appear from the pleadings to be limited to the Luffley Mountain property.)
(h)
Ms Communitas' payments in respect of the first loan and the re-financed loan after the purchase of the vacant land became part of "Living Expenses", defined quite extensively in the statement of claim but as including all of Atrill's food and basic necessities, day to day living expenses, personal and company tax payments and credit card payments.
17 It will be noted that although there is an allegation that Ms Communitas provided funds to Morning Star to pay the mortgage payments in respect of Caprice, she does not claim an equitable interest in Caprice, nor in the vacant land. The obvious reason for the first omission is that she arranged for Potable Gold to purchase Caprice in March 2015.
18 In both proceedings, apart from uncontroversial details of relevant corporations and established ownership and transfers of property, there is a wide area of dispute. On an analysis of the pleadings, in my view the two proceedings involve common issues which will need to be determined and which will involve findings of fact. In the main, I accept the plaintiff's written submissions on this point: see pars [48]-[57]. In short summary, the issues are as follows.
(a) Ms Communitas' relationship with Atrill, and the Infinity/Hermes community.
(b) The circumstances which gave rise to the acquisition by Morning Star of Caprice.
(c) The funding arrangements for the purchase of Caprice.
(d) The circumstances which gave rise to the purchase of the vacant land and of the re-financing to allow that to occur. (e) Who was making what payments, and in what capacity, of the mortgage payments and property expenses in respect of Caprice and the vacant land, both before and after the re-financing and the acquisition of the land. (f) The characterisation of the payments referred to in subpar (e). (g) What, if any, express declarations of trust were made in respect of Caprice; or possibly, what other facts exist that might be said to give rise to a resulting or constructive trust. (h) The circumstances of the sale by Morning Star to Potable Gold, arranged by Ms Communitas.
19 The decision to wind up Morning Star and the question of the distribution of its assets would seem to arise in the Communitas proceedings and may arise in the present action if the amendment is permitted. It is of some relevance, although in my view of no great weight, that the issue of the assets of Morning Star may very well arise proceedings brought by Ms Porter against Ms Rains in the Supreme Court of New South Wales. Those proceedings are in respect of the estate of the late Mr Atrill and are described in Ms Ryzner's affidavit at pars [88]-[99]. There is no need for me to go into particular detail.[4] Mr Atrill was a shareholder in Morning Star and was a unit holder in the Morning Star Trust. Ms Rains has filed a cross-claim which brings in Infinity and another company. The proceedings have been stayed pending determination of the Communitas proceedings.
[4] Ms Porter is seeking a grant of letters of administration of Mr Atrill's estate. Ms Rains has counterclaimed for an order that the whole of the estate be distributed to her; alternatively for an order of family provision. Infinity and another company of which Ms Porter is a director were joined in the proceedings. There followed an amended statement of claim seeking the same orders in Ms Porter's favour.
20 Although as I have said, the Communitas proceedings raises much wider considerations, part of the claim directly relates to the acquisition of Caprice, and the allegations are inconsistent with what Ms Communitas, as the alter ego of Potable Gold, raises in these proceedings. Of course, Ms Porter is a director of the plaintiff company, and the sole shareholder and director of the defendant in the Communitas proceedings.
21 As well as a significant overlap in the two proceedings of the evidence of witnesses, there will be much documentation common to both. This is borne out by the evidence of the documents the subject of subpoenas issued to Potable Gold. Although also relevant to the question of the more appropriate forum, there will be common witnesses, whether they are giving evidence in a personal capacity, or as a sole director or one of a number of directors of the relevant corporations. Very plainly, critical questions of the credibility of at least the principal witnesses will be involved.
22 I conclude that the two proceedings are related within the meaning of s 5(2)(b)(1) of the Act. Considerations that arose in the Bankinvest case are apposite. Rogers A-JA noted that of the two sets of proceedings, one in New South Wales and one in Queensland, the New South Wales action enlarged the ambit of the issues and included parties who were not involved in the Queensland ones. At 721 his Honour said that it was clear beyond argument that if both proceedings were to proceed, "there would be two courts in Australia required to make a determination of many of the same issues".
23 That leaves the question of the appropriate forum. It would seem that this needs to be looked at in isolation from the question of whether the two proceedings are related.
24 First, I note that the Supreme Court of New South Wales has, in its own right, and absent consideration of the Act, jurisdiction to hear these proceedings. The rule denying jurisdiction in respect of land situated in a different jurisdiction, established in British South Africa Co v Companhia de Mozambique [1893] AC 602, has been abrogated by statute in that State: Jurisdiction of Courts (Foreign Land) Act 1989 (NSW), s 3. However, under s 4 of that Act a court can refuse to exercise jurisdiction if it considers it is not the appropriate forum.
25 In any event, there is an exception to the rule which enables a court to determine actions involving rights in equity and concerning persons within the forum. Courts of equity have jurisdiction in personam in relation to foreign land against a party present within the forum. Accordingly, it is accepted that jurisdiction may be exercised in respect of a claim against a trustee although the trust estate is land outside the jurisdiction, and in such an action, if the existence of the trust is disputed, it is within the power of the court to determine whether there is a trust: Tritech Technology Pty Ltd v Gordon [2000] FCA 75 at [28]; Talacko v Talacko [2009] VSC 349 at [15].
26 The location of the subject matter is relevant and, of course, Caprice is in Tasmania. The defendant in these proceedings has brought proceedings in the Magistrates Court against the plaintiff for possession of Caprice, but that action is stayed pending the determination of the one in this Court. However, these proceedings do not involve any issue of the legal ownership. Importantly, the relevant conduct of members of the Community took place in New South Wales. All of the acts, statements and communications relevant to the allegation that Hermes has a beneficial interest in Caprice took place in New South Wales. Both the registered offices of both the plaintiff and the defendant are in New South Wales. The real substance of the dispute involves conduct in New South Wales, and to that extent Caprice being in Tasmania may be seen more as a superficial connecting factor. See for instance Bridge and Marine Engineering Pty Ltd v Taylor [2002] VSC 60; Pacific Hydro Group Two Pty Ltd v Argyle Diamond Mines Pty Ltd [2003] VSC 229.
27 A significant factor in favour of a transfer is that none of the witnesses, or at least the prominent and pivotal witnesses, live in this State. Taking their evidence by video link would be most unsatisfactory as significant issues of credibility are involved. In truth, credibility may well be the key deciding factor. Clearly all principal witnesses could travel to Tasmania but that would involve much expense and some inconvenience. That would be obviated if the proceeding were transferred. It was not suggested there would be any witnesses from Tasmania, but to the extent there would be, they would seem to be on the periphery and could conveniently give evidence by video link.
28 In terms of legal representation, the plaintiff's solicitors are based in Queensland. It briefs senior counsel in Tasmania for this action, and separate counsel in New South Wales for the Communitas proceedings. Ms Communitas instructs solicitors in New South Wales in her action, and counsel there
have been briefed, while the defendant – controlled by her – instructs Tasmanian solicitors, and local
senior counsel is briefed.[5] All of that may tend to favour New South Wales but it is not of any great weight.[5] The current solicitors are the third firm on the record since the action was commenced.
29 As suggested by the defendant, delay is a factor with a very high degree of significance. Clearly, any transfer will involve delay. There is evidence of an expectation that the Communitas proceedings are to be listed for hearing in December 2024 or early 2025. That was unchallenged. There is also unchallenged evidence on behalf of the defendant that a date for hearing is unlikely to be allocated to the matter until 2025. I do not proceed on any assumption that these proceedings will be actually consolidated with the Communitas proceedings, but I think a concurrent hearing is a very likely scenario. I take into account the likely period of delay beyond 5 August 2024 to early 2025.
30 It is relevant to bear in mind that there was an order on 18 October 2023 setting the matter down for trial, although the date was not set until 14 December 2023. The order by which the action was set down for trial was made ex parte. The plaintiff has a reasonable explanation for not appearing. The matter came back to the judge on 22 November 2023 on applications by the plaintiff to set aside the order and to refer the matter to mediation. The judge was not persuaded to set aside the trial date but made the referral. When notice of the trial date was given on 14 December, the plaintiff responded to the Registry, noting the listing would be subject to an application to transfer the proceeding.
31 The defendant did not suggest any specific form of prejudice beyond that which might ordinarily be accounted by the delay in the resolution of litigation. There seems to be a dispute about the rental of Caprice, but the plaintiff is paying disputed amounts into a solicitors' trust account. Nothing was suggested in terms of an immediate need for physical possession of the property.
32 I do not dismiss the question of delay lightly, but I am not persuaded that the delay caused by a transfer will be of considerable length or that undue prejudice will result. I take the view that the cumulative effect of the other factors that I have discussed, prevail over that of delay. I would add that the defendant made its application to amend its defence after the application to transfer and which, on any view of things, would at least run the risk of causing some delay beyond the allocated trial date if granted. To the extent it may be necessary, I also express my satisfaction that a transfer is in the interests of justice.
Amendment
33 I have regard to principles of amendment in the context of case management as explained in
Aon Risk Services Australia Pty Ltd v ANU [2009] HCA 27, 239 CLR 175 at [24] – [30] and [111] –
[113]. The general approach is usefully summarised by Gilmour and Foster JJ in Caason Investments
Pty Ltd v Cao [2015] FCAFC 94, 236 FCR 322 at 19-21. In summary their Honour said:"The Court's power to leave to amend as broadened has the immediate objection ensuring any defect in the pleadings in cured and that the real question is in the controversy are properly agitated and to avoid a multiplicity of proceeding.
Leave to amend should be granted unless the proposed amendment is futile, such that the issue sought to be added is unlikely to succeed, the amendment is likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs." (My emphasis)
34 As to the amendments sought, each party sought to minimise or maximise the impact on the litigation as per their position on the matter. There may be some merit in the defendant's argument that a number of the proposed amendments introduce "small, new issues and/or where the amendments are close in nature to the existing pleadings", referring to Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [22] and Dodge v Snell [2010] TASSC 12 at [17]-[19].
35 However, some are more substantial and involve, to one degree or another, questions of fact and law. I also accept that there are some issues raised in the proposed amended defence in respect of which discovery would need to be made, if not already made. I note that there seems to be no dispute that, in any event, compliance with a request by the plaintiff for further discovery on the present pleadings has been outstanding since 22 January 2024.
36 I would add that when the order was made setting down the action for trial, the judge effectively dispensed with the requirements of Division 1 of Part 22 of the Supreme Court Rules. The order was not vacated when the plaintiff later went back to the judge, but nothing was then done about the dispensation of the requirements of Division 1 or of dealing with the relevant matters by way of Division 1 of Part 14. Accordingly, a court a does not have the benefit of the stated agreements and information usually contained within a certificate of readiness; in particular the various lists of documents.
37 I accept the plaintiff's submission that at least some of the proposed amendments raise difficulties in case management of the type it has identified. The argument was that quite significant new issues would be introduced, with the resulting need for a "substantial reply", for additional discovery, and for possible additional witnesses. In particular, as I would see it, those issues are as follows:
•
The terms and effect of the Covenant pleaded in par 13 of the statement of the claim, given Ms Communitas is the sole director and shareholder of the defendant.
•
Whether any declarations of trust were "manifested and proved by some writing signed by some person who was able to declare such trust" in accordance with s 60(2)(b) of the Conveyancing and Law of Property Act 1884, an issue which arises in relation to two factual assertions in the statement of claim.
•
The quantum of the purchase price paid by the defendant to Morning Star Financial Services Pty Ltd as trustee as the Morning Star Trust, and whether the plaintiff's action is statute barred by virtue of s 16(A) of the Limitation Act 1974.
38 Further, in response to the pleading that Ms Communitas and another caused Morning Star to be wound up in late April 2015, the defendant seeks to raise that at that time the trust distributed all of its assets to the unit holders in the trust, and the trust was wound up with the company holding no assets with no liabilities and, had only acted as trustee of the trust and was no longer required by its shareholders and directors.
39 In short, I am persuaded that in all of the circumstances, and given the issues now sought to be raised, the defendant should be allowed to make the amendments to its defence. In light of the time to trial I think it is possible all things can be attended to, but I am sceptical. I think it is more likely the trial date will be put in jeopardy, and there is no degree of certainty that it will start on the appointed date. The plaintiff is not unduly prejudiced by that delay as such, for the reasons I have stated.
40 I grant leave to amend the defence in accordance with the draft attached to the application and would do so irrespective of my view about the transfer.
41 For those reasons, I made the following orders:
(a)
These proceedings be transferred to the Sydney Registry of the Supreme Court of New South Wales.
(b)
The costs of these proceedings including the costs of and incidental to this application, be reserved to the Supreme Court of New South Wales.
(c) Costs of the application to transfer be costs in the cause.
(d)
The defendant has leave to file an amended defence in accordance with the draft amended defence attached to the letter of application dated 24 April 2024.
(e) The costs of the application to amend the costs in the cause of the defendant.
APPENDIX – Extracts of affidavit of Alana Ryzner
"10
I am instructed by Ms Porter and verily believe that between about 2002 and 2020, Ms Porter, Ms Communitas, and Ms Rains were members of a shared living community that is now known as The Fellowship. Ms Communitas and Ms Rains are no longer members of The Fellowship. The Fellowship was founded by Ms Porter and her husband, Mr Attrill. Mr Attrill passed away in December 2013.
…
14 Morning Star is also relevant to the Proceedings. Morning Star was deregistered on or about 24 April 2015. At that time, its directors and shareholders were Ms Communitas, Ms Rains, and Mr Attrill. As Mr Attrill passed away in December 2013, his shareholding in Morning Star and his 1 unit in the Morning Star Trust has vested in his estate.
Caprice
15 The Hermes Proceeding concerns a property formally known as Tasmanian Recorder of Titles Volume 47314 Folio 2, commonly known as 850 Cygnet Coast Road, Wattle Grove in Tasmania. This property is colloquially known by the parties as 'Caprice', and in this affidavit I refer to this property as "Caprice".
16 I am instructed by Ms Porter and verily believe that Hermes (or persons associated with Hermes and My Clients) have been in possession of and occupied Caprice continuously since April 2005 to the current day, other than for a brief period between March 2015 to October 2015.
17 In the Hermes Proceeding, Hermes seeks, inter alia, declarations that the defendant, Potable Gold holds Caprice on trust for it, and orders for Potable Gold do all things necessary to transfer Caprice to Hermes.
18 On 13 July 2005, Morning Star (at that time a company associated with My Clients), became the registered proprietor of Caprice.
19 On 6 March 2015, Morning Star sold Caprice to Potable Gold. Potable Gold is currently the registered proprietor of Caprice.
20 On 15 May 2023, a caveat lodged by Hermes on 6 April 2023 was registered on title to Caprice (Caveat). The Caveat was removed from title on 13 November 2023.
21 On 22 February 2024, I caused for correspondence to be sent by post and email to the Tasmania Land Titles Office.
22 On 29 February 2024, Cronin Miller received an email from the Land Titles Officer confirming that caveat no. E375237 has now been registered on title to Caprice.
… Luffley Mountain
24 The Communitas Proceeding concerns a property formally identified as title reference 1/575524 and 165/727437, commonly known as 120 Kellys Road, Eungella in New
South Wales. This property is colloquially known by the parties as 'Luffley Mountain’,
and in this affidavit I refer to this property as "Luffley Mountain".
25 Infinity, in its capacity as trustee of the Infinity Unit Trust, has been the registered proprietor of Luffley Mountain since 15 February 2001.
26 I am instructed and verily believe that My Clients (or persons associated with them) have been in possession of and occupied Luffley Mountain continuously since it purchased Luffley Mountain, and that Luffley Mountain is Mr Attrill's burial place.
27 In the Communitas Proceeding, Ms Communitas and Mercury seek, inter alia, declarations that Infinity holds Luffley Mountain on constructive trust to the extent that their contributions to the property are traceable into it, as well as orders for the sale of Luffley Mountain, and equitable damages or compensation. The contributions relied upon by Ms Communitas and Mercury are those that are pleaded to be within the defined categories of "Property Costs" and "Living Expenses".
28 On 13 July 2021, Ms Communitas caused caveat no. AR238097 to be lodged on title to
Luffley Mountain. … Orders have been made in the Communitas Proceeding for the
operation of the Caveat to be extended until further order of the Court.
The Hermes Proceeding
29 On 13 July 2021, Potable Gold commenced Magistrates Court of Tasmania proceeding M/2021/1230 against Hermes by way of a Residential Tenancy Application seeking vacant possession of Caprice (Magistrate Court Proceeding).
30 On 28 February 2022, Hermes commenced the Hermes Proceeding against Potable Gold by way of Writ of Summons.
31 The Magistrates Court Proceeding was subsequently adjourned sine die pending determination of the Hermes Proceeding.
32 On 14 June 2022, Hermes filed a Statement of Claim
33 On 24 July 2022, Potable Gold filed a Defence and Counterclaim.
34 On 30 August 2022, Hermes filed a Defence to the Counterclaim.
35 Hermes has filed further and better particulars of its Statement of Claim and Defence to the Counterclaim on 15 November 2022 and 26 May 2023.
…. 38
On 2 February 2023, Hermes filed its affidavit verifying list of documents, and on 19 April 2023, Potable Gold filed its affidavit verifying list of documents.
39
On 6 April 2023, Hermes filed an interlocutory application by letter to the Court seeking orders for the Hermes Proceeding to be stayed until a determination of the Communitas Proceeding or otherwise by order of this Court, or alternatively, stayed until after mediation in the Communitas Proceeding (Stay Application). The Stay Application was dismissed on 14 August 2023.
40
On 15 August 2023, I caused for correspondence to be sent to [the defendant's solicitor] regarding any interlocutory steps and proposed directions. There was no response.
41
On 28 August 2023, Cronin Miller was copied to an email [the defendant's solicitor] sent the Court requesting the matter be listed for directions for the matter to be set down for trial.
42
On 30 August 2023, I caused for an email to be sent to the Court agreeing to the matter being listed for directions at which time Hermes would seek for the matter to be referred to mediation.
43
On 18 October 2023, without any appearance on behalf of Hermes as a result of the Court appointment not coming to the notice of Cronin Miller, Potable Gold obtained orders setting the Hermes Proceeding down for trial without a jury with an estimated
hearing of 5 days. … … 46
Ms Communitas (as sole director of Potable Gold and Mercury, as well as in her personal capacity) refused to attend mediation in either the Hermes Proceeding or the Communitas Proceeding, and refused to attend a joint mediation that was proposed by My Clients to seek to resolve both proceedings.
47
Accordingly, on 16 November 2023, Hermes filed an interlocutory application by letter to the Court seeking orders, inter alia, to refer the proceeding to mediation (Mediation Application).
48
On 22 November 2023, the Mediation Application was adjourned sine die, and the action was referred to mediation.
49
On 6 December 2023, Hermes filed a further interlocutory application by letter to the Court seeking orders for discovery from non-parties pursuant to Rule 403FA of the Supreme Court Rules 2000 (Discovery Application).
… 51
On 11 December 2023, as ordered by the Court, the parties attended mediation which did not resolve the proceeding.
52
On 14 December 2023, the proceeding was listed for a 5-day trial commencing on 5 August 2024.
53
On 15 December 2023, as trial dates had then been listed in the proceeding, Hermes amended the Discovery Application to apply for orders pursuant to Rule 496(6) of the Supreme Court Rules 2000 (Tas) (Rules) for an early return date of 1 March 2024 for subpoenas to produce documents.
54
On 18 December 2023, the Honourable Chief Justice Blow made the orders sought in the amended Discovery Application.
… 57
On 8 January 2024, Hermes served a Notice to Make Discovery on Potable Gold pursuant to Rule 383(1) of the Rules, with the documents requested to be produced by 22 January 2024 (Discovery Notice).
… 61
As at the date of this my affidavit, no documents have been produced in response to the Discovery Notice.
The Communitas Proceeding
62 On 31 August 2021, Ms Communitas commenced the Communitas Proceeding by way of Summons seeking interlocutory and final relief.
63 On 7 September 2021, Ms Communitas filed a statement of claim, and on 10 November 2021, Infinity filed its defence.
… 66 On 17 November 2022, Ms Communitas filed an amended statement of claim which substantially amended her claim against Infinity, and which joined Mercury as second plaintiff (ASOC). 67 Until around 2 February 2023, Finn Roache Lawyers were the solicitors on record for the plaintiffs. Roberts & Partners Lawyers (RPL) filed a notice of change of solicitor in the proceeding on 2 February 2023. 68 On 28 February 2023, Infinity filed an amended defence to the ASOC. 69 On 22 March 2023, Ms Communitas and Mercury filed their reply to the defence. 70 The parties then each filed an interlocutory motion, with Ms Communitas and Mercury seeking leave of the Court to issue 14 subpoenas (notwithstanding that leave is not required in the NSWSC to issue subpoenas), and Infinity seeking orders for the proceeding to be referred to mediation. 71 On 5 June 2023, the two interlocutory motions were determined with the Court granting leave to Ms Communitas and Mercury to issue the 14 subpoenas and ordering for the proceeding to be referred to mediation. 72 On 19 June 2023, Ms Communitas and Mercury filed the subpoenas … All documents produced therein were available to the parties by 21 August 2023. 73 On 7 November 2023, the parties attended a full day mediation with Mr John West KC as mediator. … 85 On 30 April 2024 and 31 May 2024, orders were made in the Communitas Proceeding that provided for the parties to serve any lay evidence, serve any proposed categories for discovery, and for the matter to be listed for directions on 15 August 2024. 86 Cronin Miller has instructed a forensic accountant to prepare an expert report in the Communitas Proceeding which, amongst other things, will review the documents produced under subpoena in the proceeding and review and provide an expert opinion on the payments said to have been made by Morning Star, Mercury, and Ms Communitas regarding Caprice and the Land."
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