John Sheahan v Schaffer Corporation Limited No. SCGRG 92/1935 Judgment No. 3767 Number of Pages 3 Practice Cross-vesting - [1992] SASC 3767

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Practice - cross-vesting - application to transfer to Supreme Court of Western Australia action by liquidator of company which carried on business in South Australia seeking order declaring payments to defendant company, which carried on business in Western Australia, a preference - consideration of factors involved -held on the facts that the application should be refused - observations as to the manner in which such applications should be approached. Jurisdiction of Courts (Cross-Vesting) Act ss (2)(b)(iii) and Corporations (South Australia) Act 544. Re Preble Ptv Ltd (in liquidation) (Receivers and Managers annointed) (1991) 6 ACSR 181, discussed.

HRNG ADELAIDE, 15 December 1992 #DATE 15:12:1992
Counsel for applicant Schaffer:     Mr J Oks
Solicitors for applicant:             Home Taylor &; Co
Counsel for respondent:             Mr M O'Donnell
Solicitors for respondent:            Thomson Simmons

ORDER
Application refused.

JUDGE1 PERRY J The plaintiff, John Sheahan, is the official liquidator of Heading Australia Pty Ltd, ("Heading") which was ordered to be wound up by order of this Court on 24 April 1990. Subsequently, the company changed its name to Diquid Pty Ltd. Before its liquidation, Heading carried on business in South Australia, during the course of which it ordered goods from the local representative of the defendant. The defendant operated a tannery at Coogee, Western Australia. The present proceedings were instituted in this Court by a summons on 28 August 1992. 2. In the proceedings Mr Sheahan claims that certain payments made by Heading to the defendant were preferences liable to be set aside pursuant to s.451 of the Companies Code or s.565 of the Corporations Law. The defendant has filed a defence to the proceedings in which it denies that the relevant payments were preferences, and asserts that the payments were received by the defendant in good faith and for valuable consideration and in the ordinary course of business. 3. The defendant now applies by an application filed on 14 October 1992 (document No. 6) for an order that "the Supreme Court of South Australia does not have jurisdiction", or in the alternative that "the Supreme Court of Western Australia is the proper forum for the trial of the action". 4. Contrary to the requirements of Form 21, the application does not indicate the statute or rule upon which it is brought. However, during the course of the hearing of the application it became clear from the submissions of Mr Oks for the applicant, that in fact the application is to transfer the proceedings to the Supreme Court of Western Australia either pursuant to s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act, or pursuant to s.44 of the Corporations (South Australia) Act. 5. As to the first part of the application, Mr Oks did not address an argument that the Supreme Court of South Australia does not have jurisdiction. Clearly it does. 6. The question then is whether under either of the provisions to which I have referred it would be…

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 John Sheahan v Schaffer Corporation Limited No. SCGRG 92/193...

Details

AGLC: John Sheahan v Schaffer Corporation Limited No. SCGRG 92/1935 Judgment No. 3767 Number of Pages 3 Practice Cross-vesting [1992] SASC 3767
Case: [1992] SASC 3767
Decision Date: 15 December 1992

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of John Sheahan v Schaffer Corporation Limited No. SCGRG 92/1935 involved a legal dispute regarding cross-vesting jurisdiction. John Sheahan, as the liquidator of Heading Australia Pty Ltd, filed a claim against Schaffer Corporation Limited, seeking to set aside certain payments as preferences under the Companies Code or the Corporations Law. Schaffer Corporation Limited, which operated a tannery in Western Australia, filed a defence denying the allegations and requested the proceedings be transferred to the Supreme Court of Western Australia.

The court was required to decide whether the Supreme Court of South Australia had jurisdiction over the matter and, if not, whether the proceedings should be transferred to the Supreme Court of Western Australia under the provisions of the Jurisdiction of Courts (Cross-Vesting) Act or the Corporations (South Australia) Act. The court examined the interests of justice, convenience, and expense, considering factors such as the location of witnesses and the availability of local evidence. The affidavits presented by both parties indicated an exaggerated number of necessary witnesses from each jurisdiction, and the court found that the suggestion of engaging a Western Australian accounting firm was an attempt to create a misleading impression of greater local content in Western Australia.

After careful consideration of the affidavits and submissions, the court concluded that the balance of convenience favoured keeping the action in the Supreme Court of South Australia. The court believed that with proper pre-trial procedures, the number of witnesses required for the trial could be minimised, reducing costs for both parties. Therefore, the application for transfer was refused.

Orders