Nazdall Pty Ltd v Herrmann - [2012] FCA 994

FEDERAL COURT OF AUSTRALIA
Nazdall Pty Ltd v Herrmann [2012] FCA 994

Citation: Nazdall Pty Ltd v Herrmann [2012] FCA 994

Parties: NAZDALL PTY LTD (ACN 009 649 843) and YOWDALL PTY LTD (ACN 115 340 433) v MURRAY JOHN HERRMANN, CHUN YOW NOMINEES PTY LTD (ACN 009 601 423) and CHI KUNG NOMINEES PTY LTD (ACN 081 824 400)

File number: VID 427 of 2012

Judge: MARSHALL J

Date of judgment: 31 August 2012

Catchwords: PRACTICE AND PROCEDURE – change of venue – application to transfer proceeding to the Northern Territory District Registry of the Court – balance of convenience – relevant principles – order made transferring the proceeding – s 48 of the Federal Court of Australia Act 1976 (Cth)

Legislation: Federal Court of Australia Act 1976 (Cth) s 48

Cases cited: National Mutual Holdings Pty Ltd v the Sentry Corporation and Another (1988) 19 FCR 155
Macks v Garrett (2008) 174 FCR 151
Comello Pty Ltd v Feeney [2011] FCA 1334
Quotila Pty Ltd v South Australian Marine Products Industries Pty Ltd (No 2) [2011] FCA 29
Alliance Craton Explorer Pty Ltd and Quasar Resources Pty Ltd [2010] FCA 1415
Gunn Capital Management Pty Ltd v Solamind Pty Ltd [2010] FCA 1360
Mortimer v Opus Prime Stockbroking Ltd [2009] FCA 227
Lamb v Hog’s Breath Company Pty Ltd (No 1) [2007] FCA 49

Date of hearing: 31 August 2012

Date of last submissions: 31 August 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 15

Counsel for the Plaintiffs: Mr P Fary

Solicitor for the Plaintiffs: White Cleland Lawyers & Consultants

Counsel for the Defendants: Mr A Wyvill

Solicitor for the Defendants: Withnalls Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 427 OF 2012

BETWEEN:
NAZDALL PTY LTD (ACN 009 649 843)
First Plaintiff

YOWDALL PTY LTD (ACN 115 340 433)
Second Plaintiff

AND:
MURRAY JOHN HERRMANN
First Defendant

CHUN YOW NOMINEES PTY LTD (ACN 009 601 423)
Second Defendant

CHI KUNG NOMINEES PTY LTD (ACN 081 824 400)
Third Defendant

JUDGE:

MARSHALL J

DATE OF ORDER:

31 AUGUST 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The proceeding is transferred to the Northern Territory District Registry of the Court.
2.The balance of the defendants’ Interlocutory Application of 27 August 2012, the plaintiffs’ Interlocutory Application and the Directions Hearing are all adjourned to a date to be fixed by arrangement with the District Registrar of the Northern Territory District Registry.
3.Costs reserved.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 427 OF 2012

BETWEEN:
NAZDALL PTY LTD (ACN 009 649 843)
First Plaintiff

YOWDALL PTY LTD (ACN 115 340 433)
Second Plaintiff

AND:
MURRAY JOHN HERRMANN
First Defendant

CHUN YOW NOMINEES PTY LTD (ACN 009 601 423)
Second Defendant

CHI KUNG NOMINEES PTY LTD (ACN 081 824 400)
Third Defendant

JUDGE:

MARSHALL J

DATE:

31 AUGUST 2012

PLACE:

MELBOURNE

REASONS FOR…

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.

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Details

Case: [2012] FCA 994
Decision Date: 31 August 2012

CaseChat Overview and Summary

The case of Nazdall Pty Ltd v Herrmann involved the plaintiff, Nazdall Pty Ltd, which sought to transfer a proceeding from the Brisbane Registry of the Federal Court to the Northern Territory District Registry of the Court. The defendants in the case opposed the transfer, leading to the need for a judicial determination on the matter. The court was tasked with deciding whether the transfer of the proceeding was warranted based on the balance of convenience and relevant principles.

The legal issues before the court were whether the transfer of the proceeding to the Northern Territory District Registry was appropriate under section 48 of the Federal Court of Australia Act 1976. The court had to consider the balance of convenience, which included factors such as the convenience of the parties and witnesses, the location of evidence, and the administration of justice. The defendants argued against the transfer, but the plaintiff submitted that the transfer was necessary for the efficient administration of justice and to ensure the convenience of the parties involved.

In deciding the matter, the court considered the principles established in previous cases regarding the transfer of proceedings and the balance of convenience. The court found that the transfer was in the interests of justice and would result in a more efficient administration of the proceeding. The court also took into account the convenience of the parties and witnesses, as well as the location of evidence. Based on these considerations, the court made an order transferring the proceeding to the Northern Territory District Registry of the Court.

The court further adjourned the balance of the defendants’ Interlocutory Application, the plaintiffs’ Interlocutory Application, and the Directions Hearing to a date to be fixed by arrangement with the District Registrar of the Northern Territory District Registry. Costs were reserved for a later determination. The entry of orders was to be dealt with in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The proceeding is transferred to the Northern Territory District Registry of the Court.

2. The balance of the defendants’ Interlocutory Application of 27 August 2012, the plaintiffs’ Interlocutory Application and the Directions Hearing are all adjourned to a date to be fixed by arrangement with the District Registrar of the Northern Territory District Registry.

3. Costs reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Nazdall Pty Ltd v Herrmann [2012] FCA 994
Parties:		NAZDALL PTY LTD (ACN 009 649 843) and YOWDALL PTY LTD (ACN 115 340 433) v MURRAY JOHN HERRMANN, CHUN YOW NOMINEES PTY LTD (ACN 009 601 423) and CHI KUNG NOMINEES PTY LTD (ACN 081 824 400)
File number:		VID 427 of 2012
Judge:		MARSHALL J
Date of judgment:		31 August 2012
Catchwords:		PRACTICE AND PROCEDURE – change of venue – application to transfer proceeding to the Northern Territory District Registry of the Court – balance of convenience – relevant principles – order made transferring the proceeding – s 48 of the Federal Court of Australia Act 1976 (Cth)
Legislation:		Federal Court of Australia Act 1976 (Cth) s 48
Cases cited:		National Mutual Holdings Pty Ltd v the Sentry Corporation and Another (1988) 19 FCR 155 Macks v Garrett (2008) 174 FCR 151 Comello Pty Ltd v Feeney [2011] FCA 1334 Quotila Pty Ltd v South Australian Marine Products Industries Pty Ltd (No 2) [2011] FCA 29 Alliance Craton Explorer Pty Ltd and Quasar Resources Pty Ltd [2010] FCA 1415 Gunn Capital Management Pty Ltd v Solamind Pty Ltd [2010] FCA 1360 Mortimer v Opus Prime Stockbroking Ltd [2009] FCA 227 Lamb v Hog’s Breath Company Pty Ltd (No 1) [2007] FCA 49
Date of hearing:	31 August 2012
Date of last submissions:	31 August 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	15
Counsel for the Plaintiffs:	Mr P Fary
Solicitor for the Plaintiffs:	White Cleland Lawyers & Consultants
Counsel for the Defendants:	Mr A Wyvill
Solicitor for the Defendants:	Withnalls Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 427 OF 2012

JUDGE:	MARSHALL J
DATE OF ORDER:	31 AUGUST 2012
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	31 AUGUST 2012
PLACE:	MELBOURNE