Lamshed v Lamshed - [1992] FCA 224

Re: GLEN HENRY LAMSHED; LILA MAY LAMSHED and TREVOR WILLIAM LAMSHED
And: GEOFFREY GLEN LAMSHED; KATHLEEN ISABELLE LAMSHED and GGL PTY. LTD.
No. SG93 of 1991
FED No. 224
Practice and Procedure - Cross-vesting
(1992) 35 FCR 111

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Practice and Procedure - Cross-vesting - traditional State matter - partnership dispute - purpose of cross-vesting legislation - effect of delay in bringing application to cross-vest.

Cross-vesting - See above

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

HEARING

ADELAIDE

#DATE 9:4:1992

Counsel for the Applicants : Mr R.J. Whitington
(the respondents to this Motion)

Solicitors for the Applicants : Messrs Fisher Jeffries

Counsel for the Respondents : Mr P.A. McNamara
(the applicants to this Motion)

Solicitors for the Respondents : Messrs J.A. Carr and Co

ORDER

The Court orders:

1. That the application for an order transferring the proceedings to the Supreme Court of the State of South Australia be dismissed.

2. That the respondents pay the costs of the applicants which costs are to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The issue for determination at this interlocutory stage is whether the history and circumstances of this litigation are such that I should transfer the proceedings to the Supreme Court of South Australia pursuant to the powers contained in the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Cross-Vesting Act").

The first two-named applicants in the substantive proceedings, Glen Henry and Lila May Lamshed, are husband and wife and the third applicant, Trevor William Lamshed, is their eldest son. The respondent Geoffrey Glen Lamshed is their second son and Kathleen Isabelle Lamshed is his wife; the corporate respondent, GGL Pty. Ltd., is the trustee of Mr and Mrs Geoffrey Lamshed's family trust.
Until recently the three applicants and the first two named respondents had carried in partnership their farming business in the north of Yorke Peninsula in partnership using lands that are owned by one or more members of the larger Lamshed family. It is, in my opinion, a matter of significance that the corporate respondent was not a member of the partnership just as it is a matter of curiosity that it is a respondent to these proceedings.
It is apparent that the parties are locked in bitter conflict; the interlocutory processes have thrown up intractable attitudes on both sides. At this stage it is impossible as well as undesirable to engage in any fault finding exercise but I am compelled to observe that any proposal advanced by one side is invariably challenged and fought out by the other. For example, whilst all partners agree that their partnership is now dissolved, they cannot agree on the date of dissolution.
Proceedings were commenced in this Court on 14 November 1991 by way of an Application together with a Notice of Motion seeking the appointment of a Receiver…

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 Lamshed v Lamshed

Details

AGLC: Lamshed, G.H. & ors v Lamshed, G.G. & ors [1992] FCA 224 ((1992) 35 FCR 111)
Case: [1992] FCA 224
Decision Date: 09 APRIL 1992

CaseChat Overview and Summary

The case of Lamshed v Lamshed involved the applicants, Lamshed and another, seeking an order to transfer proceedings from the Federal Circuit Court to the Supreme Court of South Australia. The dispute was a traditional state matter concerning a partnership. The applicants sought to transfer the proceedings to South Australia on the basis of cross-vesting legislation. The matter was heard in the Federal Circuit Court, which had jurisdiction to hear the matter under the cross-vesting legislation. The court was required to determine whether the applicants' delay in bringing the application to cross-vest was a valid reason to refuse the transfer.

The court considered the purpose of the cross-vesting legislation, which was to provide a mechanism for the transfer of proceedings between federal and state courts where appropriate. The court also considered the effect of the delay in bringing the application to cross-vest. The applicants had waited several months before bringing the application, during which time the proceedings had progressed significantly. The court held that the delay was significant and that it was not in the interests of justice to transfer the proceedings to the Supreme Court of South Australia. The court found that the delay had caused prejudice to the respondents, who had conducted the majority of the discovery and had prepared for the hearing in the Federal Circuit Court.

The court dismissed the application to transfer the proceedings to the Supreme Court of South Australia. The court ordered that the respondents pay the costs of the applicants. The court held that the delay in bringing the application to cross-vest was a valid reason to refuse the transfer, and that the delay had caused prejudice to the respondents. The court also noted that the applicants had not provided a satisfactory explanation for the delay. The final orders of the court were that the application for an order transferring the proceedings to the Supreme Court of the State of South Australia be dismissed and that the respondents pay the costs of the applicants.

Orders

Orders of the court

The Court orders:

1. That the application for an order transferring the proceedings to the Supreme Court of the State of South Australia be dismissed.

2. That the respondents pay the costs of the applicants which costs are to be taxed in default of agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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