MWP Transport Pty Ltd v Michael Thomas Kent - [2018] NSWSC 524

Supreme Court

New South Wales

Medium Neutral Citation: MWP Transport Pty Limited v Michael Thomas Kent [2018] NSWSC 524
Hearing dates: 20/04/2018
Date of orders: 20 April 2018
Decision date: 20 April 2018
Jurisdiction: Equity - Commercial List
Before: McDougall J
Decision:
Dismiss First Defendant’s application for a stay.

Catchwords: PROCEDURE – application for stay – concurrent civil and criminal proceedings – where plaintiffs in civil proceedings have not yet filed evidence – no prejudice to first defendant if evidence is permitted to be filed – prejudice to plaintiffs’ if stay granted – application for stay premature – application dismissed.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46
McMahon v Gould (1982) 7 ACLR 202
Niven v SS [2006] NSWCA 338
Reid v Howard (1995) 184 CLR 1
Category: Procedural and other rulings
Parties: MWP Transport Pty Ltd (First Plaintiff)
MWP Australia Pty Ltd (Second Plaintiff)
FRHP Holdings Pty Ltd (Third Plaintiff)
Michael Thomas Kent (First Defendant)
Christine Poynton-Kent (Second Defendant)
Deduce Financials Pty Ltd (Third Defendant)
Kent Investment Holdings Pty Ltd (Fourth Defendant)
MCKRF Pty Ltd (Fifth Defendant)
Deduce Superannuation Pty Ltd (Sixth Defendant)
Representation:
Counsel:
J Hynes (Plaintiffs)
K Madgwick (First, Third, Fourth and Sixth Defendants)
I R Coleman SC (Second and Fifth Defendants)
Solicitors:
William James (Plaintiffs)
RE Barros & Company (Defendants)

File Number(s): 2018/71774

Judgment (ex tempore – revised 22 april 2018)

HIS HONOUR: The first defendant, Mr Kent, was employed as Chief Financial Officer by the Pace group of companies. Three companies in that group say that Mr Kent has misappropriated very substantial sums of money over a number of years. The current estimate is that the misappropriations may have exceeded in total $9 million.
There is evidence that Mr Kent has made oral admissions as to the misappropriations. However, there is no confirmation (from a source other than the plaintiffs’ witnesses) of those admissions. There is, however, evidence of an admission made in writing by Mr Kent to an investigative accountant retained by the plaintiffs that he misappropriated approximately $1.2 million by one particular fraudulent mechanism and that he may have misappropriated $7 million to $9 million in total.
I am concerned today with Mr Kent's application for a stay of the proceedings. He seeks that stay because he has been charged with three counts of breach of s 192E(1)(b) of the Crimes Act 1900 (NSW). In essence, each charge alleges that, on a number of occasions, Mr Kent dishonestly obtained a financial advantage or caused disadvantage by deception. In each case the company said to have been the victim of that conduct is the third plaintiff. No criminal charges have been laid in respect to any losses that the first two plaintiffs claim to have suffered.
Mr Kent gives evidence that he wishes to see if he can negotiate a plea of guilty in the criminal proceedings. The negotiations will commence, he says, once the brief…

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.

Keep reading for free

Create a free CaseChat account to read MWP Transport Pty Ltd v Michael Thomas Kent and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 524
Decision Date: 20 April 2018

CaseChat Overview and Summary

MWP Transport Pty Ltd brought a civil action against Michael Thomas Kent for various breaches of contract and tortious claims. Kent, in turn, faced criminal charges in relation to the same conduct. MWP Transport applied for a stay of the civil proceedings to allow the criminal matter to be finalised first, arguing that the civil and criminal proceedings were concurrent. Kent opposed the application, asserting that the civil action should proceed as the plaintiffs had not yet filed evidence and the criminal proceedings had not yet begun. The court was required to determine whether the application for a stay was appropriate given the circumstances.

The court held that the application for a stay was premature because the plaintiffs had not yet filed evidence, and the criminal proceedings had not yet commenced. The court emphasised that if the stay was granted, it would prejudice the plaintiffs' right to pursue their civil claims. Conversely, the first defendant would not be prejudiced if the evidence was permitted to be filed. The court also noted that the plaintiffs' application for a stay did not adequately demonstrate that the criminal proceedings would significantly overlap with the civil claims or that there would be an undue burden or expense if both proceedings were allowed to continue concurrently.

Given the lack of prejudice to the first defendant and the potential prejudice to the plaintiffs if the stay was granted, the court dismissed the application for a stay. The court concluded that the application was premature and did not meet the threshold for a stay to be granted. Consequently, the civil proceedings could continue alongside the impending criminal proceedings. The court ordered that the application for a stay was dismissed.

Orders