Neil v Nugent

[2005] WASC 166

NEIL & ORS -v- NUGENT & ORS [2005] WASC 166

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 166
Published:	28/07/2005
Case No:	CIV:1232/2004	Heard:	23 FEBRUARY & 20 JULY 2005
Coram:	MASTER SANDERSON	Delivered:	20/07/05
No of pages:	6	Judgment Part:	1 of 1
Result:	Application for transfer to be heard first
Category:	B
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Parties:	PETER CHRISTISON NEIL NEIL-HURT NOMINEES PTY LTD (ACN 005 218 066) LORITA NOMINEES PTY LTD (ACN 005 388 250) A R DEVINE PTY LTD (ACN 005 223 969) TIME TECHNOLOGY AUSTRALIA PTY LTD (ACN 081 597 382) MURRAY FRANCIS NUGENT AUSTRALIAN HOME WARRANTY PTY LTD (ACN 072 501 047) MURRAY NUGENT & ASSOCIATES PTY LTD (ACN 007 019 632) CONSORTIUM OF MANAGEMENT SCHOOLS PTY LTD (ACN 075 828 250) REWARD INSURANCE LTD (ACN 007 118 854) REWARD MFI PTY LTD (ACN 093 373 605) REWARD ASSOCIATES PTY LTD (ACN 097 241 604) REWARD ADVANTAGE PTY LTD (ACN 097 329 836)
Catchwords:	Practice and procedure Application to transfer proceedings Application to restrain individuals from instructing solicitors Which to be heard first Turns on own facts
Legislation:	Nil
Case References:	Nil Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357 Nangas Pty Ltd v Charles Donovan Pty Ltd (In Liq) [1989] VR 184 Newman v Phillips Fox (A Firm) (1999) 21 WAR 309

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : NEIL & ORS -v- NUGENT & ORS [2005] WASC 166 CORAM : MASTER SANDERSON HEARD : 23 FEBRUARY & 20 JULY 2005 DELIVERED : 20 JULY 2005 PUBLISHED : 28 JULY 2005 FILE NO/S : CIV 1232 of 2004 BETWEEN : PETER CHRISTISON NEIL

First Plaintiff

NEIL-HURT NOMINEES PTY LTD (ACN 005 218 066)
Second Plaintiff

LORITA NOMINEES PTY LTD (ACN 005 388 250)
Third Plaintiff

A R DEVINE PTY LTD (ACN 005 223 969)
Fourth Defendant

TIME TECHNOLOGY AUSTRALIA PTY LTD (ACN 081 597 382)
Fifth Plaintiff

AND

MURRAY FRANCIS NUGENT
First Defendant

AUSTRALIAN HOME WARRANTY PTY LTD (ACN 072 501 047)
Second Defendant

(Page 2)

MURRAY NUGENT & ASSOCIATES PTY LTD (ACN 007 019 632)
Third Defendant

FILE NO/S : COR 9 of 2005 BETWEEN : PETER CHRISTISON NEIL

First Applicant

NEIL-HURT NOMINEES PTY LTD (ACN 005 218 066)
Second Applicant

LORITA NOMINEES PTY LTD (ACN 005 388 250)
Third Applicant

A R DEVINE PTY LTD (ACN 005 223 969)
Fourth Applicant

TIME TECHNOLOGY AUSTRALIA PTY LTD (ACN 081 597 382)
Fifth Applicant

CONSORTIUM OF MANAGEMENT SCHOOLS PTY LTD (ACN 075 828 250)
Sixth Applicant

AND

REWARD INSURANCE LTD (ACN 007 118 854)
First Respondent

REWARD MFI PTY LTD (ACN 093 373 605)
Second Respondent

REWARD ASSOCIATES PTY LTD (ACN 097 241 604)
Third Respondent

(Page 3)

REWARD ADVANTAGE PTY LTD (ACN 097 329 836)
Fourth Respondent

Catchwords:

Practice and procedure - Application to transfer proceedings - Application to restrain individuals from instructing solicitors - Which to be heard first - Turns on own facts

Legislation:

Nil

Result:

Application for transfer to be heard first

Category: B

(Page 4)

Representation:

CIV 1232 of 2004

Counsel:

First Plaintiff : Mr P A Hopwood
Second Plaintiff : Mr P A Hopwood
Third Plaintiff : Mr P A Hopwood
Fourth Defendant : Mr P A Hopwood
Fifth Plaintiff : Mr P A Hopwood
First Defendant : Mr J C W Skinner
Second Defendant : Mr J C W Skinner
Third Defendant : Mr J C W Skinner

Solicitors:

First Plaintiff : Cocks Macnish
Second Plaintiff : Cocks Macnish
Third Plaintiff : Cocks Macnish
Fourth Defendant : Cocks Macnish
Fifth Plaintiff : Cocks Macnish
First Defendant : Jackson McDonald
Second Defendant : Jackson McDonald
Third Defendant : Jackson McDonald

COR 9 of 2005

Counsel:

First Applicant : Mr P A Hopwood
Second Applicant : Mr P A Hopwood
Third Applicant : Mr P A Hopwood
Fourth Applicant : Mr P A Hopwood
Fifth Applicant : Mr P A Hopwood
Sixth Applicant : Mr P A Hopwood
First Respondent : Mr J C W Skinner
Second Respondent : Mr J C W Skinner
Third Respondent : Mr J C W Skinner
Fourth Respondent : Mr J C W Skinner

(Page 5)

Solicitors:

First Applicant : Cocks Macnish
Second Applicant : Cocks Macnish
Third Applicant : Cocks Macnish
Fourth Applicant : Cocks Macnish
Fifth Applicant : Cocks Macnish
Sixth Applicant : Cocks Macnish
First Respondent : Jackson McDonald
Second Respondent : Jackson McDonald
Third Respondent : Jackson McDonald
Fourth Respondent : Jackson McDonald

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

Nil

Case(s) also cited:

Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357
Nangas Pty Ltd v Charles Donovan Pty Ltd (In Liq) [1989] VR 184
Newman v Phillips Fox (A Firm) (1999) 21 WAR 309


(Page 6)

1 MASTER SANDERSON: In each of these two matters, each of the parties made an application. In CIV 1232 of 2004, the defendants made an application to transfer the proceedings to the Supreme Court of Victoria. The respondents in COR 9 of 2005 made the same application. Both of these applications were dated 15 February 2005.

2 In COR 9 of 2005, the applicants sought orders pursuant to s 233 of the Corporations Act 2001 (Cth) restraining certain named individuals from taking steps in an action brought against the respondents by the applicants. It is open to question whether reference to s 233 is appropriate. That is the oppression section which anticipates final relief. It may be that the interlocutory process should refer to s 1324 of the Corporations Act 2001 (Cth). Anyway, it is clear that the applicants in COR 9 of 2005 are seeking to restrain officers of the respondents from doing certain things. That summons was issued on 10 February 2005.

3 When the matter came on for hearing, there was a dispute between the parties as to which of the proceedings ought go first. After hearing argument, I determined that the transfer proceedings ought be decided first. The point at issue in that application is really quite simple. It is a question of the convenience of the parties and where the matter may be most conveniently heard. There is no great point of principle involved and the material necessary to determine the question is limited. I appreciate that in dealing with the transfer application the persons who the applicants in COR 9 of 2005 would seek to restrain, may be in a position to give instructions to the companies' solicitors, something the applicants say they ought not to do. But the instructions to be given are necessarily limited and it is difficult to see that any great mischief will be caused.

4 On the other hand, the applicants' application in COR 9 of 2005 to restrain the respondents is of some significance. While it is an interlocutory process, it will necessarily involve detailed consideration of the issues. If that is to be undertaken, then it should properly be undertaken in the court which will deal with the whole of the case. Experience shows that resolution of an interlocutory process which involves detailed consideration of the ultimate issues, may take some time and may in fact best be handled in the context of the case as a whole. It would make no sense at all to deal with the interlocutory process in this Court and then have the matter transferred to Victoria.

5 For these reasons, I determined that the proper course was to have the transfer applications dealt with first.