Irawan v AWB Ltd - [2001] VSC 374

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7877 of 2000

AGUS IRAWAN	Plaintiff
v
AWB LIMITED and AWB (International) Limited	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 and 17 September 2001
DATE OF JUDGMENT:	11 October 2001
CASE MAY BE CITED AS:	Agus Irawan v AWB Ltd and Anor
MEDIUM NEUTRAL CITATION:	[2001] VSC 374

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Discovery from a prospective defendant; reasonable cause to believe that applicant for discovery has or may have the right to obtain relief in the court; nature of relief: derivative action for the accessory liability for director’s breach of fiduciary duty; meaning of “company” under s. 236(3) of Corporations Act 2001; not to apply to a “foreign company” not registered under Corporations Act. Application for “Norwich Order” for discovery; application made in aid of proceedings commenced in a foreign court; jurisdiction of the court to make a “Norwich Order” to assist in proceedings in a foreign Court; order not granted.

Corporations Act 2001 (C’th) s. 236(1)(b) and (3), s. 237(1).
Supreme Court Act s. 29
Rule 32.05

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Ian Waller	Clayton Utz
For the Defendant	Mr W. Martin QC with Mr R. McIness	O’Donnell, Frampton Salzano

HIS HONOUR:

These proceedings were commenced by originating motion filed on 4 December 2000.

By the plaintiff’s further amended originating motion and the amended summons on the originating motion the plaintiff seeks an order pursuant to Rule 32.05 of Chapter 1 of the Rules of the Supreme Court that the defendants make discovery to him of all documents that they have or have had in their possession concerning payment by the defendants (or their predecessors) of a volume rebate or similar payment due and owing and payable to Intermilling Commodities Pte Ltd in the period January 1997 to December 2000 but paid by the defendants (or their predecessors) to a person or corporation other than Intermilling Commodities Pty Ltd.

Further, by his further amended originating motion and amended summons the plaintiff in addition or alternative to the order sought pursuant to Rule 32.05, seeks an order in similar terms to that sought in reliance on Rule 32.05, but stated to be “in accordance with the principles enunciated in Norwich Pharmacol v Commissioners of Customers and Excise [1974] AC 133”. This form of order has become known as a “Norwich Order”.

In respect of the relief sought by the plaintiff against the defendant by his further amended originating motion and amended summons the plaintiff sought pre-action discovery from prospective defendants.

The defendants opposed the relief sought in these proceedings against it. Affidavits have been sworn and filed in the proceedings on behalf of each of the parties to the proceeding. None of the deponents were cross-examined on the affidavits filed in the proceedings. The facts relevant to these proceedings are to be collectively gained by reference to the various affidavits filed in the proceedings. To this I first turn.

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.

Continue reading Irawan v AWB Ltd

Details

AGLC: Irawan v AWB Ltd [2001] VSC 374
Case: [2001] VSC 374
Decision Date: 11 October 2001

CaseChat Overview and Summary

The applicant, Irawan, sought a Norwich Order for discovery of documents from the respondent, AWB Ltd, in relation to proceedings commenced in a foreign court. Irawan sought to hold AWB Ltd accountable for accessory liability in relation to a director’s breach of fiduciary duty. AWB Ltd opposed the application on the grounds that it was a foreign company not registered under the Corporations Act 2001 and therefore not subject to the provisions of the Act permitting a derivative action. The court was required to determine whether it had jurisdiction to grant a Norwich Order to assist in proceedings in a foreign court and whether the provisions of the Corporations Act 2001 applied to AWB Ltd.

The court found that Irawan had established a reasonable cause to believe that AWB Ltd had or may have the right to obtain relief in the court, as it was a foreign company not registered under the Corporations Act 2001, the provisions of the Act permitting a derivative action did not apply to it. The court held that it did not have jurisdiction to grant a Norwich Order to assist in proceedings in a foreign court. The court also held that s. 236(3) of the Corporations Act 2001 did not apply to AWB Ltd as it was not a company registered under the Act. Accordingly, the application for a Norwich Order was dismissed.

The court found that Irawan had not demonstrated that AWB Ltd was a company within the meaning of s. 236(3) of the Corporations Act 2001 and therefore did not have the right to bring a derivative action against it. The court also held that it did not have jurisdiction to grant a Norwich Order to assist in proceedings in a foreign court. The application for a Norwich Order was dismissed with costs.

Orders