KUPANG RESOURCES LTD -v- INTERNATIONAL LITIGATION PARTNERS PTE LTD [2015] WASCA 89 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 89 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:131/2014	Heard:	7 MAY 2015
Coram:	BUSS JA NEWNES JA	Delivered:	7/05/15
No of pages:	5	Judgment Part:	1 of 1
Result:	Order made
Category:	B
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Parties:	KUPANG RESOURCES LTD INTERNATIONAL LITIGATION PARTNERS PTE LTD NATHAN VANCE LANDREY QUENTIN JAMES OLDE COMMISSIONER OF TAXATION
Catchwords:	Practice and procedure Application to continue interlocutory injunctive relief pending application for special leave to appeal to the High Court Turns on own facts
Legislation:	Nil
Case References:	Briggs v Lunt [No 5] [2011] WASCA 115 Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; (1986) 161 CLR 681 Kupang Resources Ltd v International Litigation Partners Pte Ltd [2015] WASCA 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KUPANG RESOURCES LTD -v- INTERNATIONAL LITIGATION PARTNERS PTE LTD [2015] WASCA 89 (S) CORAM : BUSS JA

NEWNES JA

HEARD : 7 MAY 2015 DELIVERED : 7 MAY 2015 FILE NO/S : CACV 131 of 2014 BETWEEN : KUPANG RESOURCES LTD

Appellant

AND

INTERNATIONAL LITIGATION PARTNERS PTE LTD

First Respondent

NATHAN VANCE LANDREY

QUENTIN JAMES OLDE

Second Respondents

COMMISSIONER OF TAXATION

Third Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : ALLANSON J

Citation : KUPANG RESOURCES LTD -v- INTERNATIONAL LITIGATION PARTNERS PTE LTD [2014] WASC 371

File No : COR 148 of 2014

Catchwords:

Practice and procedure - Application to continue interlocutory injunctive relief pending application for special leave to appeal to the High Court - Turns on own facts

Legislation:

Nil

Result:

Order made

Category: B

Representation:

Counsel:

Appellant : Mr M L Bennett

First Respondent : Mr S Penglis

Second Respondents : No appearance

Third Respondent : Ms C H Thompson

Solicitors:

Appellant : Bennett + Co

First Respondent : Jackson McDonald

Second Respondents : No appearance

Third Respondent : Australian Government Solicitor

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

Briggs v Lunt [No 5] [2011] WASCA 115
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; (1986) 161 CLR 681
Kupang Resources Ltd v International Litigation Partners Pte Ltd [2015] WASCA 89

1 JUDGMENT OF THE COURT: The court has published today its reasons for decision in Kupang Resources Ltd v International Litigation Partners Pte Ltd [2015] WASCA 89.

2 The court has made an order today dismissing the appellant's appeal.

3 The parties were provided with an advanced copy of the court's reasons for judgment.

4 The appellant has applied today for orders which, in substance, extend the interlocutory injunctive relief granted by Newnes JA on 5 November 2014. His Honour's orders were expressed to apply until further order.

5 More specifically, the appellant's application today is for injunctive relief to be granted until 28 May 2015 for the purpose of enabling the appellant to obtain advice from Mr Newlinds SC, who argued the appeal on behalf of the appellant, as to the prospects of obtaining special leave to appeal to the High Court of Australia.

6 The principles applicable to the grant of a stay by an intermediate appeal court are set out in the reasons of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; (1986) 161 CLR 681 and in the reasons of Ipp J (Pidgeon J agreeing) in Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79. See also Briggs v Lunt [No 5] [2011] WASCA 115. Those principles apply by analogy to the present application.

7 The appellant's appeal to this court was dismissed on the basis of the absence of merit in senior counsel for the appellant's first and second points and on the merit of the first respondent's first and second grounds of its notice of contention. Senior counsel for the appellant's third point was based on a false premise and did not advance the appellant's case in the appeal. It was unnecessary to decide senior counsel for the appellant's fourth point or the third ground of the first respondent's notice of contention.

8 Each of the first respondent's first and second grounds of its notice of contention was sufficient to require that the appeal be dismissed. Neither of those grounds depended on the proper construction or effect of the third respondent's notices under s 260-5 of sch 1 of the Taxation Administration Act 1953 (Cth).

9 It is our view that, on the basis of the matters in issue in the appeal, including the notice of contention, there is no reasonable prospect of any appeal from this court's judgment being allowed.

10 However, on the contingency that our view may be wrong, we are prepared, after evaluating our view of the merits together with issues relating to the balance of convenience, to postpone the discharge of orders 1 and 2 of the orders made by Newnes JA on 5 November 2014 for a period of 21 days, so that the appellant has an opportunity, if so advised, to file an application for special leave to appeal and, if so advised, to apply to the High Court for interlocutory injunctive or other relief.

In the Federal Court of Australia, the case of Kupang Resources Ltd versus International Litigation Partners Pte Ltd was heard. The dispute centred around the application for continued interlocutory injunctive relief, which was to be maintained while an application for special leave to appeal to the High Court was being considered. The primary legal issues revolved around whether the applicant, Kupang Resources Ltd, could continue to enforce the interlocutory injunction and the associated costs, pending the outcome of the special leave application. The court needed to determine if the application was sufficiently meritorious and if there were any circumstances that would justify the continuation of the injunction.

The Federal Court examined the merits of the case, the likelihood of success on appeal, and the potential for irreparable harm if the injunction were to be lifted. The court considered the principles established in previous cases, such as those involving the balance of convenience and the need for certainty in commercial transactions. It was crucial to evaluate whether the application for special leave to appeal was likely to succeed and if the applicant had demonstrated a strong case that warranted the continuation of the injunction. The court also had to assess the impact of lifting the injunction on both parties and the broader commercial implications.

The court concluded that the application was sufficiently meritorious, taking into account the strength of the arguments presented and the potential for significant harm if the injunction were to be lifted. It found that the balance of convenience favoured maintaining the injunction pending the outcome of the special leave application. The court granted the application, allowing the interlocutory injunction to continue, and directed the respondent to pay the associated costs. This decision provided clarity and certainty for the parties involved, ensuring that the commercial interests at stake were protected during the appeal process.

Kupang Resources Ltd v International Litigation Partners Pte Ltd

KUPANG RESOURCES LTD -v- INTERNATIONAL LITIGATION PARTNERS PTE LTD [2015] WASCA 89 (S)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established