IMO Officar Pty Ltd - [2018] VSC 125

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2016 01115

IN THE MATTER of OFFICAR PTY LTD (ACN 142 983 042)

QIANG LI	Plaintiff
v
OFFICAR PTY LTD ACN 142 982 042 AND OTHERS (according to the attached schedule)	Defendants

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2017
DATE OF JUDGMENT:	9 February 2018
CASE MAY BE CITED AS:	IMO Officar Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 125

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CORPORATIONS – Plaintiff’s proceeding claims relief for oppressive conduct under Part 2F.1 of the Corporations Act 2001 (Cth) – Defendant to plaintiff’s proceeding files counterclaim in respect of alleged breach of contractual arrangements by the defendants to counterclaim which only involve the plaintiff on the periphery – Application to strike out counterclaim without prejudice to assert the counterclaim in a separate proceeding pursuant to rule 10.06(c) of the Supreme Court (General Civil Procedure Rules) 2015 – Application for alternative orders that there be separate trials of the claim and counterclaim under rule 10.06(a) – Held, striking out counterclaim, that if counterclaim is heard with principal proceeding, will delay the hearing of the plaintiff’s proceeding – Little ‘overlap’ – Not convenient to be heard at the same time as the plaintiff’s proceeding – Counterclaim struck out.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Caillard	Nevett Ford
For the Defendants and Plaintiffs by Counterclaim	Mr M Black	Melbourne Legal Chambers
For the Second to Fifth Defendants by Counterclaim	Ms C Ballantyne, solicitor	Madgwicks Lawyers

HIS HONOUR:

By a summons filed 10 August 2017, the plaintiff seeks an order pursuant to rule 10.06(c) of the Supreme Court (General Civil Procedure) Rules 2015 that the counterclaim filed by the defendants on 4 August 2017 be struck out without prejudice to the defendants to assert the counterclaim in a separate proceeding. Alternative orders are sought including that there be separate trials of the claim and counterclaim pursuant to rule 10.06(a) of the rules.

The summons is supported by an affidavit of Gregory Doran sworn 10 August 2017. The defendants oppose the application and rely on an affidavit of Mario Merlo sworn 24 August 2017. In addition, an affidavit has been filed by the solicitor for the second to fifth defendants by counterclaim, Catherine Ballantyne, sworn 14 September 2017. Ms Ballantyne states that the parties whom she represents support the plaintiff’s application.

Rule 10.06(c) provides that notwithstanding rules 10.02 and 10.03, where a counterclaim may embarrass or delay the trial of the claim of the plaintiff or cause prejudice to any party or otherwise cannot conveniently be tried with that claim, the Court may order that any person joined as defendant to the counterclaim cease to be a party to the counterclaim.

The proceeding was commenced by originating process on 27 May 2016. It has since been the subject of a judicial mediation and several directions hearings.

On the occasion that the matter was before the Court on 27 July 2017,…

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: [2018] VSC 125
Decision Date: 9 February 2018

CaseChat Overview and Summary

In the matter of IMO Officar Pty Ltd, the plaintiff sought relief from the court for oppressive conduct under Part 2F.1 of the Corporations Act 2001 (Cth). The defendant filed a counterclaim in relation to the plaintiff, alleging a breach of contractual arrangements by the defendants. The counterclaim involved the plaintiff only peripherally. The plaintiff applied to strike out the counterclaim without prejudice to re-filing it in a separate proceeding, pursuant to rule 10.06(c) of the Supreme Court (General Civil Procedure Rules) 2015. The plaintiff also sought alternative orders for separate trials of the claim and counterclaim under rule 10.06(a).

The court considered whether the counterclaim should be struck out, and if so, whether it should be without prejudice to the defendant's right to re-file it in a separate proceeding. The court considered the potential delay in hearing the plaintiff's proceeding if the counterclaim was heard at the same time. The court found that there was little overlap between the two proceedings and that it was not convenient for them to be heard together.

The court held that the counterclaim should be struck out, without prejudice to the defendant's right to re-file it in a separate proceeding. The court found that if the counterclaim was heard with the principal proceeding, it would delay the hearing of the plaintiff's proceeding. The court also found that it was not convenient for the counterclaim to be heard at the same time as the plaintiff's proceeding. Therefore, the counterclaim was struck out, and no orders were made for separate trials of the claim and counterclaim.

Orders