McCausland v Shi Holdings Pty Limited

[2009] FCA 1522

FEDERAL COURT OF AUSTRALIA

McCausland v SHI Holdings Pty Limited

[2009] FCA 1522

WILLIAM MCCAUSLAND and YVONNE MCCAUSLAND v SHI HOLDINGS PTY LIMITED (ACN 103 227 167), CRESCENT CAPITAL PARTNERS LIMITED (ACN 094 040 874), MACQUARIE DEVELOPMENT CAPITAL II PTY LIMITED (ACN 102 607 616), TMX PTY LIMITED (ACN 076 548 108), MICHAEL THOMAS ALSCHER, ROBERT ARTHUR RICHARD LEE and TIMOTHY ARTHUR BOSHER

NSD 1007 of 2009

RARES J
11 DECEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1007 of 2009

BETWEEN:

WILLIAM MCCAUSLAND
First Applicant

YVONNE MCCAUSLAND
Second Applicant

AND:

SHI HOLDINGS PTY LIMITED (ACN 103 227 167)
First Respondent

CRESCENT CAPITAL PARTNERS LIMITED
(ACN 094 040 874)
Second Respondent

MACQUARIE DEVELOPMENT CAPITAL II PTY LIMITED (ACN 102 607 616)
Third Respondent

TMX PTY LIMITED (ACN 076 548 108)
Fourth Respondent

MICHAEL THOMAS ALSCHER
Fifth Respondent

ROBERT ARTHUR RICHARD LEE
Sixth Respondent

TIMOTHY ARTHUR BOSHER
Seventh Respondent

JUDGE:	RARES J
DATE OF ORDER:	11 DECEMBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.These proceedings be transferred to the Supreme Court of New South Wales pursuant to s 5(4)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

BY CONSENT, THE COURT ORDERS THAT:

2.Each party bear its own costs of the notice of motion filed on 2 October 2009.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1007 of 2009

BETWEEN:

WILLIAM MCCAUSLAND
First Applicant

YVONNE MCCAUSLAND
Second Applicant

AND:

SHI HOLDINGS PTY LIMITED (ACN 103 227 167)
First Respondent

CRESCENT CAPITAL PARTNERS LIMITED
(ACN 094 040 874)
Second Respondent

MACQUARIE DEVELOPMENT CAPITAL II PTY LIMITED (ACN 102 607 616)
Third Respondent

TMX PTY LIMITED (ACN 076 548 108)
Fourth Respondent

MICHAEL THOMAS ALSCHER
Fifth Respondent

ROBERT ARTHUR RICHARD LEE
Sixth Respondent

TIMOTHY ARTHUR BOSHER
Seventh Respondent

JUDGE:	RARES J
DATE:	11 DECEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an application by consent to transfer these proceedings to the Supreme Court of New South Wales where related proceedings are pending. The history of the proceedings was summarised in a judgment delivered by Rein J on 17 November 2009 in the Supreme Court. In substance, the applicants in this Court have claimed that they are entitled to relief both under s 233 of the Corporations Act 2001 (Cth) and in the Court’s accrued jurisdiction. The dispute concerns the way in which the respondent corporations have had their affairs conducted, having regard to some involvement the applicants had with the corporations.

2. The first applicant, William McCausland, also commenced proceedings in the Industrial Relations Commission of New South Wales involving allegations of an overlapping kind to those the subject of the oppression claims here.  Rein J observed that one common aspect of the overall controversy between the various parties in the various proceedings included claims for oppression.  He considered that this aspect needed to be ventilated in the Supreme Court, and he ordered that the proceedings in the Industrial Relations Commission be transferred to that Court.  In my opinion, it would be manifestly undesirable and contrary to the interests of justice for the parties to be committed to bifurcated proceedings in the Supreme Court and in this court concerning the same controversy.

3. Having regard to the reasons that Rein J gave, I am satisfied that it is in the interests of justice, based on the litigious history to date in the various fora in which the parties have ventilated their disputes, that one court alone deal with the whole of the matter. I am satisfied that it is more appropriate that these proceedings be determined by the Supreme Court of New South Wales. Indeed, it is clearly in the interests of justice that these proceedings be determined by that Court for the purposes of section 5(4)(b)(iii) of the Jurisdiction of Courts(Cross-Vesting) Act 1987 (Cth): see BHP Billiton Ltd v  Schultz (2004) 221 CLR 400 at 421 [14]. There Gleeson CJ, McHugh and Heydon JJ said that “…the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice”; see too Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2006] FCA 1361 at [41] per myself.

4. Accordingly, I will make the orders sought.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        17 December 2009

Counsel for the Applicants:	E Collins
Solicitor for the Applicants:	Turtons Lawyers
Solicitor for the Respondents:	S Barry of Henry Davis York

Date of Hearing:	11 December 2009
Date of Judgment:	11 December 2009